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THE MORAL VIGILANTE AND HER
COUSINS IN THE SHADOWS
Paul H. Robinson*
By definition, vigilantes cannot be legally justified—if they satisfied a justification defense, for example, they would not be lawbreakers—but they may well be morally justified, if their aim is to
provide the order and justice that the criminal justice system has failed
to provide in a breach of the social contract. Yet, even moral vigilantism is detrimental to society and ought to be avoided, ideally not by
prosecuting moral vigilantism but by avoiding the creation of situations that would call for it. Unfortunately, the U.S. criminal justice
system has adopted a wide range of criminal law rules and procedures
that regularly and intentionally produce gross failures of justice.
These doctrines of disillusionment may provoke vigilante acts,
but not in numbers that make it a serious practical problem. More
damaging is their tendency to provoke what might be called “shadow
vigilantism,” in which civilians and officials feel morally justified in
manipulating or subverting the criminal justice system to compel the
system to deliver the justice that it appears reluctant to impose. Unfortunately, shadow vigilantism can be widespread and impossible to effectively prosecute, leaving the system’s justness seriously distorted.
This, in turn, can provoke a damaging antisystem response, as in the
“Stop Snitching” movement, that further degrades the system’s reputation for doing justice, producing a downward spiral of lost credibility and deference. We would all be better off—citizens and offenders
alike—if this dirty war had never started.
What is needed is a reexamination of all of the doctrines of disillusionment, with an eye toward reformulating them to promote the interests they protect in ways that avoid gross failures of justice.
* Colin S. Diver Professor of Law, University of Pennsylvania. The author wishes to thank
Sarah Robinson, James Lee, and John Sullivan for their excellent research assistance, and David Rudovsky, Ilya Rudyak, and the participants of faculty workshops at Utah, Columbia, Case Western Reserve, and University of Pennsylvania for useful comments and suggestions.
401
402
I.
II.
III.
IV.
V.
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TABLE OF CONTENTS
INTRODUCTION ................................................................................. 403
THE MORAL VIGILANTE ................................................................. 405
A. Filling a Breach of the Social Contract .................................... 408
1. San Francisco Vigilance Committee .................................. 408
2. Lavender Panthers .............................................................. 409
3. Deacons for Defense and Justice........................................ 410
4. Reverend Dempsey’s Operation Confiscation .................. 412
5. India’s Gulabi Gang (Pink Gang) of Women
Vigilantes .............................................................................. 414
B. A Vigilante Code........................................................................ 416
SOCIETAL PROBLEMS CAUSED BY VIGILANTISM THAT IS
MORALLY JUSTIFIED ........................................................................ 418
A. Going Too Far Once Criminal Law’s Bright Line Is
Crossed ....................................................................................... 418
1. Mantua Against Drugs (“MAD”) ...................................... 418
2. Detroit Crackhouse Burnings ............................................. 420
3. Black October and the Off-the-Pusher Movement ........... 421
B. Legitimizing Law-Breaking and Inspiring Extremists ........... 423
1. Project Perverted Justice ..................................................... 423
C. The Training and Personal-Interest Problems ........................ 426
1. Ranch Rescue ....................................................................... 426
D. The Displacement Problem ...................................................... 427
1. The Crown Heights Maccabees .......................................... 427
E. The Solution ............................................................................... 428
SPARKING THE VIGILANTE IMPULSE: DOCTRINES OF
DISILLUSIONMENT ............................................................................ 429
A. Unchecked Punishment Discretion .......................................... 430
1. Leaving Sentencing Discretion Unchecked ....................... 430
2. Early Release of Parole ....................................................... 432
B. Criminal Justice, the Game ....................................................... 433
1. Speedy Trial as a Sword Rather than a Shield .................. 434
2. Enforcing Bargained Immunity Built on Defense Lies
and Deceptions .................................................................... 436
C. Defenses for Clearly Guilty Offenders .................................... 438
1. Exclusionary Rule ............................................................... 438
2. Double Jeopardy ................................................................. 441
3. Statute of Limitations .......................................................... 445
D. Disillusionment and Lost Credibility ....................................... 447
E. Conclusion ................................................................................. 450
SHADOW VIGILANTISM.................................................................... 452
A. Community Complicity in Classic Vigilantism ....................... 453
1. William Malcolm: Shielding the Killer of an
Unpunished Child Molester ................................................ 454
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MORAL AND SHADOW VIGILANTISM
403
2. Venice, California: Public Silence on Smashing of
Drug Gathering Place ......................................................... 457
3. Kevin McElroy: Protecting the Public Killers of the
Local Intimidator ................................................................ 458
B. Manipulating the System to Compel the Justice It Seems
Reluctant to Impose ................................................................... 461
1. Refusing to Report an Offense, Assist an Investigation,
or Bring a Prosecution ........................................................ 462
2. Jury Nullification to Counter the Law’s Apparent
Indifference to Punishing Unlawful Aggressors ............... 464
3. Neighborhood Watch and Beyond .................................... 466
4. Morally Justifying Police “Testilying”............................... 467
5. Prosecutorial Overcharging ................................................ 469
6. Voting for Disproportionate Criminal Penalties .............. 471
C. Blowback and the Downward Spiral ....................................... 474
CONCLUSION ..................................................................................... 477
VI.
I.
INTRODUCTION
There are many good reasons for a criminal justice system to be devoted to doing justice. (“Doing justice” is meant here in its dictionary
sense of giving an offender the punishment deserved1). Many people see
doing justice as a deontological value in itself, but it also has a practical
value. As a wide variety of writers have observed, and as I have documented elsewhere, there is good reason to believe that a commitment to
doing justice, and avoiding injustice, has important utilitarian crimecontrol benefits.2
A criminal justice system that fails to do justice, to earn “moral
credibility” with the community it governs, can undermine its effective1.
Justice: “reward or penalty as deserved; just deserts.” WEBSTER NEW WORLD DICTIONARY
795 (David B. Guralink et al. eds., coll. ed. 1962). In determining “just
deserts,” it is not only moral philosophers, but also lay people, who are good at distinguishing among
cases according to their relative moral blameworthiness. Paul H. Robinson & Robert Kurzban, Concordance and Conflict in Intuitions of Justice, 91 MINN. L. REV. 1829, 1846–80 (2007). While some factors are culturally dependent, there are many on which there is enormous agreement across all demographics, especially those relating to the core of criminality: physical aggression and taking without
consent. Id. at 1876–80. People may disagree about the general level of severity within a punishment
system—a disagreement that for decades masked the existence of the high agreement on relative
blameworthiness—but such judgments about general severity are malleable, while shared judgments
of relative blameworthiness may not be. Paul H. Robinson et al., Realism, Punishment & Reform, 77
U. CHI. L. REV. 1611, 1623–26 (2010).
2. The diversity of writers who have made these points includes James Fitzjames Stephen,
Jeremy Bentham, Johannes Andenaes, Franklin Zimring & Gordon Hawkins, James Q. Wilson &
Richard J. Herrnstein, Henry M. Hart, Jr., Herbert L. Packer, the U.S. Supreme Court, and the drafters of the ALI’s Model Penal Code. See the authorities collected at Paul H. Robinson et al., Empirical
Desert, Individual Prevention, and Limiting Retributivism: A Reply, 17 New Crim. L. Rev. 312, 315–19,
326 (2014) [hereinafter Robinson et al., Empirical Desert]. For a discussion of the empirical evidence
in support of these effects, see PAUL H. ROBINSON, INTUITIONS OF JUSTICE AND THE UTILITY OF
DESERT 141–238 (2013) [hereinafter ROBINSON, INTUITIONS OF JUSTICE].
OF THE AMERICAN LANGUAGE
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ness in a variety of ways: (1) it can cause people to resist and subvert the
operation of the criminal justice system; (2) it can short-circuit the criminal law’s ability to stigmatize, an inexpensive yet powerful means of influencing people’s conduct; (3) it can undermine the criminal law’s ability
to get compliance in grey-area cases where the condemnable nature of
the prohibited conduct seems unsettled or ambiguous (think downloading music, insider-trading); and, perhaps most importantly, (4) it can undermine criminal law’s role in shaping societal norms (think domestic violence, drunk driving, and date rape). In contrast, a criminal law that
earns a reputation for doing justice and avoiding injustice—that earns
moral credibility with its community—is one that can harness these
sources of influence.
One final mechanism by which a system’s earned moral credibility
can promote effective crime control is its ability to avoid vigilantism. This
source of influence is unique, however, in that it is asymmetrical: while
the other mechanisms of influence gain power from avoiding both injustice and failures of justice, avoiding vigilantism depends only on the latter. This Article examines this vigilante dynamic and finds that its operation is also unique, and quite complicated. Failures of justice can provoke
classic vigilantism—people going into the streets to impose the deserved
punishment that the criminal justice system has failed to impose—but
such classic vigilantism is not, as a practical matter, a serious problem in
itself. The relatively low frequency of such conduct and the system’s ability to effectively respond with punishment suggests the problem is at
most symbolic.
There is, however, real danger in what might be called “shadow
vigilantism,” in which both civilians and officials disillusioned by the
criminal justice system’s apparently intentional failures of justice feel
morally justified in manipulating or subverting the system to compel the
justice that the system seems reluctant to impose. Shadow vigilantism is
more dangerous than the classic sort both because it can be pervasive
and because the system has no effective means of countering it. A further
source of damage comes in the predictable reaction to its common tendency to do injustice, which can then further undermine the system’s
reputation and its crime-control effectiveness in a downward spiral to
greater tragedy.
Some failures of justice are unavoidable, and are easily understood
and forgiven by the community. For example, people are likely to appreciate the natural limits on accurately reconstructing past events and the
importance of being sure, beyond a reasonable doubt, about a defendant’s guilt before imposing punishment. Failures for these reasons are
likely to be accepted as a necessary price for avoiding injustice and
wrongful convictions.
However, as Part IV details, the criminal justice system has adopted
a wide range of rules and practices that it knows in advance will produce
gross failures of justice where guilt is clear and where the offense is seri-
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ous. Such doctrines will indeed undermine the system’s moral credibility
with the community. These failure-of-justice doctrines often have a
rational basis—the criminal justice system promotes more values than
just doing justice. Fairness in adjudication is a central concern, as are a
variety of other interests, such as protecting privacy, limiting governmental intrusion in citizens’ lives, and maintaining a proper separation of
powers. But when these interests are advanced through mechanisms that
let offenders who are clearly guilty of serious crimes go free, there is a
cost of such failures of justice, both deontological and utilitarian—the
failure to give deserved punishment and the lost crime-control effectiveness that flows from the system’s lost credibility. These costs encourage
society to seek a system that promotes its legitimate interests in ways that
avoid or minimize the moral credibility costs of failures of justice.
No system can satisfy both ends of the spectrum by earning a perfect reputation for giving deserved punishment in all cases, and avoiding
miscarriage of justice by inflicting undeserved punishment. The better
the criminal justice system’s reputation for doing justice, and for avoiding
injustice, the stronger its moral credibility will be with the community it
governs. The greater the criminal justice system’s reputation for promoting these ideals, the more powerful its ability to affect people’s conduct
and their internalization of norms through the mechanisms of social influence described above will be, including avoiding vigilantism.
Among the law-abiding, vigilantism has a bad name, but probably
for the wrong reason. Vigilantism is not always the KKK perpetrating a
racist lynching in the dark of night. In many instances, vigilantism may be
morally defensible, perhaps even morally demanded: Part II illustrates
such instances. On the other hand, even moral vigilantism creates its own
societal problems, which means it should be avoided where possible, as
Part III explains. But that does not mean that the moral vigilantes must
simply suffer in silence. Rather, it means that society has a moral obligation to hold up its end of the social contract so that its citizens are never
put in the position of having to be a moral vigilante. Parts IV and V illustrate the complexity of fulfilling this obligation, and the potential damage
to a society that fails to do so.
II. THE MORAL VIGILANTE
One of the earliest developments in civilized society is giving a governing entity a monopoly on violence by shifting punishment and protection duties from the individual victim or her group to the larger society,
making justice and crime-control a governmental rather than an individual or small-group function. The shift is evident not only in practical reforms—the establishment of government-run police, courts, and corrections—but also in the symbolism enshrined in those institutions. Criminal
cases are formally brought by “The People” or “The State,” rather than
the victim. Criminal trials are typically required to be public. In the
United States, criminal liability is to be decided by lay juries representing
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the general population, both literally and symbolically. That symbolism
helps advertise the societal nature of criminal judgments, which gives
them a legitimacy, and thereby, an influence, that they would not otherwise have.
Indeed, it is this special characteristic of criminal law that is at the
heart of the criminal-civil distinction. Criminal liability rests not so much
on the fact that the offender has violated the victim’s interest—civil liability could deal with that—but vindicates instead the violation of a society’s shared norms. Indeed, many criminal offenses have little or no tort
liability counterpart because they vindicate societal interests: counterfeiting is criminalized to protect the society’s financial system; official bribery is criminalized to protect its political system; and bigamy is criminalized, even if consensual, to protect the institution of the family. Criminal
law holds a special role in expressing societal values and vindicating societal wrongs and, to do this effectively, criminal liability and punishment
must come from the society itself, not a self-appointed subgroup.
By shifting the justice and protection functions to the society, however, the individual does sacrifice her natural right to strike out against
those that try to victimize her. But it is a fair trade, which is why this social contract is so universally accepted: A societal system of punishment
and prevention has access to greater resources and, by virtue of its status,
carries greater legitimacy, which translates into greater effectiveness
from which every member of society benefits.
These virtues of societal justice help explain why vigilantism is
commonly abhorred, especially in a democratic society. Vigilantism not
only invites bias and risks lack of restraint, it is also antidemocratic. Its
self-appointed nature undermines its legitimacy and, thereby, its normative influence.
Of course, there are occasions when the individual is thrown back
into a brief state of nature, where the social contract for justice and protection can be of no help. For instance, imagine a person tries to kill you
to get the money in your purse. The government’s criminal justice system
is nowhere to be seen. If you are to save yourself, you must act on your
own behalf. Less dramatic forms of the problem can be common in
everyday life, as when the tiger mother looking for that hard-to-find video game grabs it from your hands. You will need to use force against her
to hang on to it, or to grab it back.
But the criminal law is not insensitive to the problem. It anticipates
that sometimes people will have to act on their own, that the police cannot be everywhere. Indeed, the law typically provides detailed rules that
describe just what and when a person may do what would otherwise be
prohibited. Justification defenses, for example, allow use of force against
unlawful aggressors.3 If it is necessary to protect yourself, you can shoot
3.
See, e.g., MODEL PENAL CODE § 3.04 (1962).
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the robber trying to kill you, or grab the wrist of the person trying to
steal your video game.
But even here, the criminal law has a strong preference for having
the state deal with the problem and to keep its near monopoly on the use
of force. For example, you may not use force that risks serious bodily injury to the game thief, even if that is necessary to successfully maintain
possession of the game.4 The law tells you it is better to let the thief have
it, and hope that the police and courts can sort it out later. Similarly, in
many states you may not use lethal force against the robber intent on
killing you if you can retreat in safety.5 Nor can you ever act in anticipation of an attack that you know is coming; you must wait until it comes,
even if that disadvantages you in your defense.6 In other words, the law
commonly obliges a victim to sacrifice her own interests to protect the
interests of the law-breaker if, from the larger societal perspective, this
avoids a greater harm or evil.
Some victims will be unhappy with the sacrifices required of them.7
But the rules can be defended from a societal perspective that takes account of all parties’ interests, even those of the law-breaker, and reduces
the overall risk of escalation, even if it means sacrificing the victim’s interests. It is better to defer to the courts, it is argued, even if the chance
of their success in that instance is remote.
But what if the system fails to uphold its end of the social contract in
more serious ways? What if the system’s policies and practices let crime
become a serious problem in the lives of citizens and it does not respond
to popular pleadings? What if it lets crime become a serious problem for
some minority of society but not others? What if the system, having acquired its near-monopoly on the use of force, simply becomes indifferent
to citizen’s judgments that doing justice and fighting crime are important? Obviously even in such a situation, law remains intact, and it is
still illegal for an individual to do anything beyond the strict rules of justification defenses. But, would it be so clearly immoral to ignore the legal
limits in such a situation? Is there such a thing as a moral vigilante? If so,
what rules would define how such a person could stay within the moral
realm?
Section A offers a series of case studies in which the social contract
seems to have been broken and in which the vigilante action seems quite
understandable, perhaps even morally justified. Section B, inspired by
these examples, offers ten rules that one might suggest to a person or
4. E.g., id. §§ 3.06(1)(a) & (3)(d), 3.11(2).
5. E.g., id. § 3.04(2)(b)(ii); Robinson et al., The American Criminal Code: General Defenses
(Univ. of Pa. Law School Faculty Scholarship, Paper 1425, 2014), available at http://scholarship.
law.upenn.edu/faculty_scholarship/1425 (collecting authorities).
6. The use of defensive force until the threat is imminent, under the common law formulation,
or the use of such force is “immediately necessary,” under the formulation of Model Penal Code
(“MPC”) § 3.04(1). See PAUL H. ROBINSON & MICHAEL CAHILL, CRIMINAL LAW 512 (3d ed. 2011).
7. The growing popularity of the “stand your ground” rule, which creates an exception in some
situations to the MPC rule requiring retreat before use of deadly force, probably reflects such unhappiness. Id. at 331–32.
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group contemplating moral vigilantism. If these rules are satisfied, at
least in spirit, if not in rigid detail, a group might have grounds to consider themselves morally justified, even if not legally so.
A.
Filling a Breach of the Social Contract
Although to many people the classic vision of vigilantes is the Ku
Klux Klan lynch mob, the term had a different association in its original
use. In 1851 San Francisco, citizens publicly announced the formation of
a committee to provide the protection and justice that the corrupt criminal justice system of their newly created government would not. The
“Vigilance Committee,” as it called itself—from the Spanish word for
guard or watchman8—advertised seeking members and published reports
on what it did and why.
1.
San Francisco Vigilance Committee
The city of San Francisco was created almost overnight with the discovery of gold in 1848.9 Statehood followed soon after,10 which brought
elections for offices in the new government. But many of those who ran
for office had neither local roots nor an interest in the city’s future. The
transient electorate knew little of the candidates and was often happy to
trade a vote for a free beer. They elected many rascals and the result was
a criminal justice system as often in league with the criminal gangs as it
was fighting them.11
When the situation became intolerable, citizens were finally
prompted to form their Vigilance Committee, which arrested and publicly tried offenders.12 The Committee ultimately broke the worst of the
gangs, “the Hounds,” and ran them out of the city.13 When government
officials threatened to put some of the Vigilance leaders on trial, hundreds of Committee members came forward insisting that they too must
be tried.14 The planned prosecutions stalled.15 When new elections
brought more responsible officials, the Vigilance Committee disbanded
itself.16
8.
9.
10.
11.
RAY ABRAHAMS, VIGILANT CITIZENS: VIGILANTISM AND THE STATE 4 (1998).
See, e.g., ROBERT M. SENKEWICZ, VIGILANTES IN GOLD RUSH SAN FRANCISCO 14 (1985).
See, e.g., id. at 16.
See, e.g., MARY FLOYD WILLIAMS, HISTORY OF THE SAN FRANCISCO COMMITTEE OF
VIGILANCE OF 1851 105, 107, 143–44, 214–19 (1921).
12. Id. at 203–04, 212.
13. Id. at 107 n.51.
14. Id. at 217.
15. Id.
16. Id. at 373.
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Lavender Panthers
Well-motivated vigilantism exists outside of Wild West history. A
century after the Vigilance Committee’s battle with an ineffective criminal justice system, San Francisco was still seeing vigilante action, this
time by gays being regularly bashed by homophobes as police stood by.
Three hundred gay harassment cases were logged in 1973 alone, and
many more than this went unreported to the unsympathetic police.17
In one typical incident, Reverend Ray Broshears called police when
young men were harassing people leaving his Helping Hands Gay Community Service Center.18 The police came but did nothing except tell the
harassers that it was Broshears who had called them and that it was he
who planned to file a complaint against them.19 As soon as the police left,
the young men beat Broshears severely.20
Broshears was a Pentecostal evangelical minister who raised money
for gay causes, helped homeless teenagers find shelter, and helped found
the Gay Alliance.21 He picketed large companies to protest discriminatory hiring practices and helped organize San Francisco’s first Gay Pride
Parade.22 He had watched the growing power of the Black Panthers in
nearby Oakland and after his beating he decided that his helping hand
was not enough.23 What was needed was an organization that would aggressively defend the rights of gays by providing the protection and justice that the system had shown itself unwilling to do.
In July 1973, he formed a new activist group that called itself the
Lavender Panthers.24 Its members did not carry guns, but were trained in
various martial arts and patrolled areas known for a high incidence of
gay bashing. Typically, harassers would wait outside a known gay bar,
and then begin shoving the patrons as they left in order to provoke a response that could be used as an excuse to escalate their attack to a fullscale beating.25 With the advent of the Lavender Panthers, however, the
pattern changed. In one typical incident, when gay bashers began shoving
and beating patrons outside the Naked Grape, a well-known gay bar, the
Lavender Panthers pulled up in their trademark gray Volkswagen bus,
17. The Sexes: The Lavender Panthers, TIME (Oct. 8, 1973) http://www.time.com/time/magazine/
article/0,9171,908008,00.html; see also, e.g., Lavender Panthers Patrol SF Streets to Protect Homosexuals, LOS ANGELES TIMES, July 8, 1973, at 3; The Purple Gang: San Francisco Gays Turn Vigilante,
MILWAUKEE JOURNAL, July 10, 1973, at 25, available at http://news.google.com/newspapers?nid=
1499&dat=19730710&id=jHYfAAAAIBAJ&sjid=xigEAAAAIBAJ&pg=1420,624726; Ivan Sharpe,
Vigilantes in Lavender, LEADER-POST, July 10, 1973, at 11, available at http://news.google.com/news
papers?id=onJVAAAAIBAJ&sjid=uTwNAAAAIBAJ&pg=1261%2C1382772.
18. The Sexes: The Lavender Panthers, supra note 17.
19. Id.
20. Id.
21. Id.; see also Lavender Panthers Patrol SF Streets to Protect Homosexuals, supra note 17, at 3.
22. Lavender Panthers Essay, GOOGLE SITES, https://sites.google.com/site/psabrittanybrock/thelavender-panthers (last visited Jan. 9, 2015).
23. See The Sexes: The Lavender Panthers, supra note 17.
24. See id.
25. See id.
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grabbed pool cues, and began beating the harassers who quickly fled.26 In
this particular incident, the gay bashers made a tactical error in retreating
without their car and were forced to return to the bar later to try to negotiate its return.
Another common strategy of the Lavender Panthers was to tag the
harassers with red spray paint and use whistles to call attention to their
harassment.27 Within a year, the right of homosexuals to live openly in
the community had gained sufficient acceptance, and the incidents of
harassment had been sufficiently reduced, that the Lavender Panthers
determined they were no longer needed and voluntarily disbanded their
group.28
The Lavender Panthers had probably never heard of the original
San Francisco Vigilance Committee, but both organizations were
spawned by a belief that failures of justice could not simply be tolerated,
that it was sometimes both necessary and moral to take up the task that
the criminal justice system was refusing to do. The social contract—by
which citizens give up their right to use force and rely upon the criminal
justice system for protection and justice—had been breached. Both the
1851 Vigilance Committee and the 1973 Lavender Panthers saw little
choice, and complete legitimacy, in taking up their natural right to protect themselves and to do the justice that the official system had forsaken.
These are two examples of vigilante groups that can lay some colorable claim to moral, if not legal, justification. But, there are a wide
variety of vigilante groups for which one might have some sympathy and
understanding.
3.
Deacons for Defense and Justice
In 1964, the Congress of Racial Equality (“CORE”) planned to
stage a desegregation campaign in the city of Jonesboro, Louisiana.29 In
an effort to prevent this, the local branch of the Ku Klux Klan organized
a motorcade to drive through a black neighborhood in the city.30 The police participated, and helped cut off power to the neighborhood.31 It was
in response to this intimidation and others like it that a group of about
twenty African-American men first formed the Deacons for Defense and
Justice, an armed paramilitary group, many of whose members were war
26. Id.
27. Id., see also Lavender Panthers Patrol SF Streets to Protect Homosexuals, supra note 17, at 3;
The Purple Gang: San Francisco Gays Turn Vigilante, supra note 17, at 25.
28. Lavender Panthers Essay, supra note 22.
29. Ben Garrett, Profile: Deacons for Defense and Justice: The Use of Guns in the Civil Rights
Movement, ABOUT.COM, http://civilliberty.about.com/od/guncontrol/a/Deacons-for-Defense.htm (last
visited Nov. 4, 2014); Elwood Watson, Deacons for Defense and Justice, BLACKPAST.ORG, http://
www.blackpast.org/aah/deacons-defense-and-justice (last visited Nov. 4, 2014).
30. LANCE HILL, THE DEACONS FOR DEFENSE: ARMED RESISTANCE AND THE CIVIL RIGHTS
MOVEMENT 37 (2004).
31. Id.
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veterans.32 The group took on tasks of guarding activists, patrolling black
neighborhoods, and protecting civil rights demonstrations from the Klan,
and sometimes the police.33 The members of the group did not publicly
identify themselves for fear of sanctions by officials.34
In 1965, in nearby Bogalusa, a local black paper mill manager
named Robert Hicks had two CORE activists staying in his home with
his family.35 The night the activists arrived, the Bogalusa Police Chief,
Claxton Knight, came to the house and told Hicks that he should turn
over the CORE activists so they could be escorted out of town.36 Hicks
was told that the Klan would pay him a visit if he did not comply.37
Klansmen also called the house, threatening to firebomb it.38 Hicks called
friends who later arrived to guard the house.39 The Klan chose not to appear.40 Three weeks later, in response to the ongoing threat, Hicks joined
with the leaders of the Jonesboro Deacons to form the first satellite
branch of the Deacons in Bogalusa.41 In similar fashion, the Deacons
eventually spread across Mississippi, Alabama, and Louisiana.42
In another incident, a few weeks after the formation of the Bogalusa
chapter, Hicks’ wife rescued an activist from his car after it had been surrounded by a group of angry Klansmen, by drawing a pistol and facing
down the Klansmen.43 Under the cover of night, the Klansmen returned
and fired upon Hicks’ home.44 But the Deacons had heard this was going
to happen, and seven members sheltered in the Hick’s home returned
fire.45
The Deacons’ activities were at first not well received by some
Black civil rights groups and activists at the time. The nonviolent Dr.
Martin Luther King, Jr. denounced their acts of “aggressive violence.”46
But increasing danger and the group’s effectiveness ultimately convinced
King to allow the Deacons to accompany him as security for the March
Against Fear from Memphis to Jackson in 1966.47 The Deacons also pro32. See id. at 38; Garrett, supra note 29; Watson, supra note 29.
33. See, e.g., HILL, supra note 30, at 30; George E. Hardin, Deacons Largely Uncredited for Defense of Civil Rights, TRI-STATE DEFENDER, May 20, 2010, available at http://www.deaconsfordefense.
blogspot.com/p/sources.html; Mike Marqusee, By Any Means Necessary, NATION (July 5, 2004), http://
www.thenation.com/article/any-means-necessary?page=0,0#axzz2YBAyFlwu; Douglas Martin, Robert
Hicks, Leader in Armed Rights Group, Dies at 81, N.Y. TIMES, Apr. 24, 2010, www.nytimes.
com/2010/04/25/us/25hicks.html?_r=0&pagewanted=print; Garrett, supra note 29; Watson, supra note
29.
34. Garrett, supra note 29.
35. Martin, supra note 33.
36. HILL, supra note 30, 93–95.
37. Id.
39. See Martin, supra note 33.
40. See id.
41. Id.
43. HILL, supra note 30, at 118.
44. Id.
45. Id.
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vided armed security for Charles Evers’ desegregation campaign in
Natchez, Mississippi.48
At its height, the Deacons expanded to approximately twenty-one
chapters.49 Although the Deacons’ willingness to use arms led to investigations by the FBI, that attention faded when other far more aggressive
organizations such as the Black Panthers arose.50 The Deacons eventually
ceased operations in 1968, and faded into relative obscurity in the history
of the civil rights movement.51
4.
Reverend Dempsey’s Operation Confiscation
Reverend Oberia Dempsey, pastor of Upper Park Avenue Baptist
Church in Harlem, New York, in 1962, was troubled by the increasing violence and other human misery associated with growing heroin and narcotics trade in the neighborhood—he believed that Harlem alone had
40,000 dope addicts.52 He was also troubled by the apparent indifference
or at least ineffectiveness of the authorities in dealing with the drug
pushers.53
He formed the Anti-Crime and Anti-Drug Committee of Harlem,
based out of his church, and initially focused on advocacy and grassroots
campaigns, including a 1962 rally of block associations, church groups,
and other community organizations to protest the official inaction on
Harlem’s drug problems.54
Dempsey also organized a campaign called “Operation Interruption,” to publicize the drug problem through newspaper articles, and to
engage in such activities as picketing known drug dealer hangouts, bringing police officers to known drug-dealing sites, and opening a rehabilitation center for recovering drug addicts known as the House of Hope.55
48. Marqusee, supra note 33.
50. Watson, supra note 29.
51. HILL, supra note 30, at 272; see also Marqusee, supra note 33; Seth Hague, “Niggers Ain’t
Gonna Run This Town”: Militancy, Conflict, and the Sustenance of the Hegemony in Bogalusa, Louisiana, 29 LOYOLA U. NEW ORLEANS STUDENT HIST. J., 1998, at 1, available at http://www.loyno.edu/
~history/journal/1997-8/Hague.html#3.
52. Editorial, Claims Harlem Has 40,000 Dope Addicts, CHI. DAILY DEFENDER, Oct. 10, 1962, at
2.
53. See Malcolm W. Browne, Pastor Organizes Militia to Combat Crime in Harlem, N.Y. TIMES,
Oct. 21, 1967, at 33; Churches in Harlem Hurt by Crime, WASH. AFRO-AMERICAN, Jan. 21, 1969, at 3,
available at http://news.google.com/newspapers?nid=2238&dat=19690121&id=RbYlAAAAIBAJ&s
jid=8_QFAAAAIBAJ&pg=2948,278620; Editorial, Claims Harlem Has 40,000 Dope Addicts, supra
note 52; Editorial, Cop Slain, 2 Attack Lawlessness in Harlem, N.Y. AMSTERDAM NEWS, Nov. 14, 1970,
at 16; Editorial, Harlem Vigilantes Move On ‘Pushers,’ CHI. DAILY DEFENDER, June 23, 1965, at 2;
Editorial, Says Harlemites Arm Themselves Because of Crime Rise in Area, N.Y. AMSTERDAM NEWS,
Oct. 21, 1967, at 7; Michael Javen Fortner, “Must Jesus Bear the Cross Alone?”: Reverend Oberia
Dempsey and His Citizen’s War on Drugs 19 (July 11, 2012) (unpublished manuscript), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2103902&download=yes; Natalie Shibley, Squashing Superfly: A Harlem Minister Fights Dope, RELIGIONS OF HARLEM (Apr. 7, 2011), http://religions
ofharlem.org/2011/04/07/squashing-superfly-a-harlem-minister-fights-dope.
54. Fortner, supra note 53, at 20–21; see also Browne, supra note 53, at 3.
55. See, e.g., Fortner, supra note 53, at 22, 36.
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These activities had limited effect. According to Dempsey, “citizens
fear to venture out after dark. Church members are afraid to go to their
meetings at night. The law seems to be in the hands of the muggers and
robbers. There’s panic among the people.”56 Some merchants began
keeping baseball bats behind their store counters because of “deep fear
of robbery or other crimes.”57
By 1965, Dempsey concluded his group must become more confrontational. They organized an armed vigilante patrol, consisting of community members and seven former police officers licensed to carry firearms.58 Dempsey himself carried a .32 revolver and became known as the
“pistol packin’ pastor.”59 The Pastor renamed the patrol “Operation
Confiscation” escalating its activities in a new initiative consisted of 200
citizen-patrol members, seeking to “watch for pushers, summon police,
and where they are not forthcoming immediately, make citizen arrests.”60
The group harassed suspected dealers and encouraged the people in the
neighborhood to go after the pushers.61 If citizens had problems with
pushers and were afraid to go to the police, they should come to him, he
said, and he would deal with the problem.62
Dempsey’s efforts were met with somewhat grudging acquiescence
by the police. In reaction to the news that Dempsey had organized a militia to prevent drug crime in Harlem, local police said they “would not
deny Mr. Dempsey’s basic premise,” and conceded that there were not
enough officers available for crime control purposes.63 As one police officer stated, “it’s a case of the good guys versus the bad guys . . . and
without the good guys of the community with us, we can’t make Harlem
safe.”64
In 1969, Dempsey organized a petition to New York’s U.S. Attorney Robert Morgenthau warning, “if something isn’t done immediately,
people are going to protect themselves. There’s going to be a lot of
bloodshed.”65 Dempsey also advocated for stricter penalties for drug
dealers, including “death by firing squad” for dope traffickers.66
By the early 1970s, Dempsey’s efforts had gained national attention;
he was interviewed by Ebony magazine in 1970, in an article entitled
“Blacks Declare War on Dope.”67 After being attacked by local drug
56. Browne, supra note 53, at 33.
57. Id.
58. Harlem Vigilantes Move on ‘Pushers,’ supra note 53, at 2.
59. Shibley, supra note 53.
60. Editorial, He Really Declares War on Dope, N.Y. AMSTERDAM NEWS, June 19, 1965, at 6.
61. Harlem Vigilantes Move on ‘Pushers,’ supra note 53, at 2.
62. Oberia Dempsey, Dope Battle ‘Lost’: The War Goes On, N.Y. AMSTERDAM NEWS, Nov. 2,
1968, at 10.
63. Browne, supra note 53, at 33.
64. Id.
65. Churches in Harlem Hurt by Crime, supra note 53, at 3.
66. Claims Harlem Has 40,000 Dope Addicts, supra note 52, at 2.
67. Black’s Declare War on Dope, EBONY, June 1970, at 31; see also Shibley, supra note 53.
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[Vol. 2015
dealers in 1971, Dempsey encouraged citizens to arm themselves.68
“[P]eople in Harlem should find the heaviest baseball bats around or any
other type of weapon that’s sold legally to ward off these hoodlums.”69
Dempsey’s efforts, and the rising crime problem in New York City,
ultimately spurred local politicians to action. By 1973, New York was
shifting away from its prior position using treatment, instead of prosecution and incarceration, to deal with the city’s drug and drug-related homicide and crime problem. Much harsher drug laws were enacted later
known as the “Rockefeller drug laws,” mandating severe sentences for
drug possession.70 Among the communities most supportive of the laws
was Dempsey’s neighborhood, where Black residents had run out of patience with the drug problem.71
5.
India’s Gulabi Gang (Pink Gang) of Women Vigilantes
In 2006, Sampat Pal Devi, a forty-five year old Indian woman, was
incensed by the misbehavior of her alcoholic brother-in-law, who had
beaten her sister and dragged her by her hair into the streets of Banda.72
Located in the Indian state of Uttar Pradesh, Banda City and the greater
Banda region was plagued by social, political, and economic problems,
ranging from hunger, poverty, murders, and droughts, to pervasive problems of corrupt government.73 The region was also known for repressive
treatment of women and child marriage; it is a region where domestic
and sexual abuse of women is considered a fact of life, and where people
of lower castes are poorly treated.74 Fully aware of these realities within
her community, Devi understood that there was no local power that
would come to the aid of her sister or any of the women who found
themselves victims of violence at the hands of local men. As Devi put it,
“[n]obody comes to our help in these parts. The officials and the police
are corrupt and anti-poor.”75 Knowing that the law would do nothing to
help, Devi organized a group of neighborhood women to go after the vic68. Editorial, Rev. Dempsey Tells Harlem to Arm Itself, WASH. AFRO-AMERICAN, May 1, 1971,
at 16, available at http://news.google.com/newspapers?nid=2211&dat=19710501&id=HSImAAAAIBA
J&sjid=Lf4FAAAAIBAJ&pg=5864,2441139.
69. Id.
70. Brian Mann, How the Rockefeller Drug Laws Changed America, N. COUNTY PUB. RADIO,
Jan. 24, 2013, available at 2013 WLNR 3751565.
71. Fortner, supra note 53, at 38–40.
72. See, e.g., India’s Pink Posse, ASIA SENTINEL (Jan. 18, 2008), http://www.asiasentinel.com/
index.php?option=com_content&task=view&id=993&Itemid=34; see also Tracy Clark-Flory, Beware
the Pink Posse: Hundreds of Indian Women Clad in Pink Saris Roam the Streets Carrying Sticks and
Axes, SALON (Nov. 26, 2007), http://www.salon.com/2007/11/26/pink_posse/ (describing the Pink Posse’s cause); Amana Fontanella-Kahn, India’s Pink Vigilantes, DAILYBEAST (Feb. 26, 2011), http://
www.thedailybeast.com/articles/2011/02/26/meet-the-woman-behind-indias-pink-vigilantes.html (giving examples of how the Pink Posse have helped individuals); Smriti Gopal, Women’s Gang in ‘Pink
Saris,’ DESI BLITZ (Dec. 25, 2010), http://www.desiblitz.com/content/womens-gang-in-pink-saris (describing the motivation behind making the movie ‘Pink Saris’).
73. India’s Pink Posse, supra note 72.
74. Clark-Flory, supra note 72; see also Gopal, supra note 72.
75. Clark-Flory, supra note 72.
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timizing brother-in-law.76 The women chased him down and beat
him with whatever they had at hand, including metal rods and a child’s
cricket bat.77
Tired of seeing the problems around her ignored by corrupt and inept officials, Devi formed a vigilante group called the Gulabi Gang (the
“Pink Gang”), consisting of women dressed in trademark bright pink saris.78 The organization would not let wife beaters and rapists go unpunished. They used police batons and bamboo rods to punish offenders that
the official system would not.79
In addition to tackling women’s rights issues, the group also began
confronting local wrongdoers and inept or corrupt local officials and police.80 The group stormed a police station demanding that officials stop
selectively enforcing laws because of the complaining victim’s caste, and
shamed officials for stealing subsidized grain designated for the poor.81
To support her operations and provide a gathering place for women to
seek help, Devi opened a small center in her hometown where women
could come and express their grievances and seek help.82
The organization soon expanded to approximately 200 members,
and then experienced explosive growth; membership numbers are now
reportedly somewhere around 20,000 women, with ten district commanders operating in an area of approximately 36,000 square miles.83 The
group operates a number of outposts modeled on Devi’s operations in
Banda, providing a meeting place for women just as Devi’s house does.84
Although strictly a vigilante and activist group when formed in
2006, the Gulabi Gang eventually entered politics, partially leaving behind the beatings and apolitical stance it became famous for.85 As of
2011, twenty-one members of the Gulabi Gang have won seats in municipality-level elections.86 As a result of their newfound political power, the
group has promoted such projects as construction and repair work of local roads, provided access to clean drinking water, and agricultural development projects.87 Local village leaders who formerly ignored the concerns of women are now somewhat more receptive.88 Devi, the initial
founder of the Gulabi Gang, still remains its “commander-in-chief,” defiantly stating that “[p]eople have tried to assassinate me, arrest me, abuse
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
86.
87.
88.
India’s Pink Posse, supra note 72.
See id.
Fontanella-Khan, supra note 72.
See id.
India’s Pink Posse, supra note 72.
Id.
Fontanella-Kahn, supra note 72; India’s Pink Posse, supra note 72.
Fontanella-Kahn, supra note 72.
Id.
See id.
Id.
Id.
See id.
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[Vol. 2015
me, and shut me up, but I won’t be quiet until things improve for the
women here.”89
B.
A Vigilante Code
In the face of the system’s gross insensitivity to the importance of
doing justice, what are people to do? Is it possible to define what would
and would not constitute legitimate vigilante action—to define a vigilante
code that sets the preconditions to and limits of moral action? If a group
were contemplating vigilante action, here are ten rules one could suggest
to them so that they can reconsider their plan and stay within more morally defensible bounds.90
1. Do not act unless there is a serious failure of justice. Any vigilante
action will be disruptive. It cannot justify itself unless it produces more
benefit than the disruption costs. For example, even if the police are lazy
and indifferent and could solve the problem if they chose to do so, a pattern of petty thefts by youngsters in a market place is not likely to justify
the social disruption of vigilante action, unless that vigilante action is itself of little or no disruption.
2. Do not act unless there is no lawful way to solve the problem. The
law allows citizens to use force in defense of unlawful aggression against
self, others, or property. Stay strictly within the requirements of this legally authorized force if that will provide the needed protection against
lawlessness.
3. Do not act alone. The vigilante is one who acts for the community,
not herself; vengeance is not vigilance. If your conduct is to reflect community views, that fact must be advertised by having the vigilante action
be group action. The larger and more broadly-based the group, the better. Open membership would be ideal. There may be practical limits on
how public some discussions can be, but the guiding principles, such as
the adoption of rules (such as these rules as a charter), ought to be
sought and approved by as large a group as possible.
4. Do not cause more harm than is necessary and just, and avoid injury to innocent bystanders. Part of doing justice means recognizing the
societal interest in minimizing damage to all, even unlawful aggressors. If
a person’s safety and property can be protected with a punch, it ought
not be defended with a shot. And, obviously, harm to innocent bystanders ought to be avoided at all costs.
5. Before acting, be sure of the facts and take full account of all relevant mitigations and excuses. Understand that this is a credibility contest
with the official criminal justice system. To win the battle for hearts and
minds, the vigilante must do it better, not worse. The point is to do justice, and justice requires taking account of the mitigations, as well as the
aggravations, in a case. A vigilance committee can as easily discredit it89.
90.
Id.
See supra note 2.
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self by showing an indifference to mitigations and excuses as the criminal
justice system disgraces itself by showing indifference to doing justice.
6. Show restraint and temperance, not arrogance or vindictiveness.
The goal is to be responsible, even if the government is not. Vigilante
groups cannot exert themselves as the wrath of God, but just a means of
shaming the government into doing what it ought to do—take justice seriously. A vigilante group must do more than just adhere to the moralvigilante rules, it must make it clear that it is adhering.
7. Give the government warning beforehand that it is in breach of its
social contract, and give it the opportunity to fix the problem, unless it is
clear that the warning would be useless. Ideally, this means laying out the
specifics of the government’s failures of justice and how these failures
can be avoided, as well as giving the government the time and opportunity to make things right. It is always preferable to have the official criminal justice system do justice, no matter how well-respected a vigilance
committee may be. Admittedly, in some instances, the problem may be
overwhelmingly obvious to all and a special notification would be senseless.
8. Publicly report afterwards what you have done and why. Failure to
publicly take responsibility for your actions simply adds to the problem
of perceived lawlessness. The community cannot judge the justness and
reasonableness of a vigilance committee’s actions unless it is given the
details of what has been done and why it needed to be done.
9. Respect the full society’s norms of what is condemnable conduct.
Do not act in pursuit of justice for an offense unless it is clear that the
larger society sees the offender’s conduct as truly condemnable. A peculiar, perverted view of the world lacks the basis for moral vigilante action.
10. If it becomes clear that the problem cannot be fixed through vigilante action, then withdraw from further action. If it becomes clear that
the criminal justice system literally cannot be changed, then further action toward that goal cannot achieve its purpose. Vigilante action must
be a temporary and transitional state that moves the system to fix itself,
not a permanent substitute for official conduct.
If you cannot abide by these rules, do not act. Justice is important and
it ought to be pursued. But vigilante action that does not take account of
the preconditions and limitations that morally justify it is doomed to do
more harm than good to the community and, ultimately, to the cause of
justice.
Vigilante action is never legally justified—if it were, by definition it
would not be vigilante action—but if a group follows these ten rules, it
might at least be morally justified.
Certainly, each case in Section A can make a plausible argument
that the criminal justice system’s failures to do justice morally authorized
them to engage in conduct that was technically criminal and legally unjustified. The 1851 San Francisco Vigilance Committee would seem to
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[Vol. 2015
satisfy most of these ten requirements. Many of the other cases described
above may satisfy many, if not most of the requirements, although it may
depend upon the details of each of their specific criminal acts.
III. SOCIETAL PROBLEMS CAUSED BY VIGILANTISM THAT IS MORALLY
JUSTIFIED
As Part II demonstrates, vigilantism cannot only be associated with
the KKK hiding behind bed sheets for a racially motivated lynching. But
even moral vigilantism can have negative consequences. In one sense vigilantism is like war: it is never a good thing, but sometimes it is the best
of bad options. Below are four examples of the kinds of problems that
can arise in morally-justified vigilante action.
A.
Going Too Far Once Criminal Law’s Bright Line Is Crossed
Criminal law, properly drafted, offers a bright line for permissible
conduct—including what is justified in response to criminal conduct undeterred by the criminal justice system. But once that line is crossed,
there are few obvious signposts telling the vigilante not to go a little further. Consider three vigilante campaigns each attempting to deal with the
same problem of drugs and related violence that Reverend Dempsey’s
Operation Confiscation had some success in dealing with by eventually
forcing the criminal justice system to take drug dealing more seriously.
Reverend Dempsey’s struggle with Harlem’s heroin problem in the
1960s was mirrored in the crack cocaine epidemic in the 1980s. The three
examples of vigilante responses—from Philadelphia, Detroit, and
Baltimore—took different paths in addressing the problem.
1.
Mantua Against Drugs (“MAD”)
The Mantua neighborhood of West Philadelphia was hard hit by the
crack cocaine epidemic. An economically depressed area—with forty
percent of its population below the poverty line and one of the worst infant mortality rates in the country—Mantua had an assortment of abandoned houses taken over by drug dealers and their customers.91 The
neighborhood was frustrated by the police’s unwillingness to do anything
about the open criminality.92 The crackhouses brought not only the usual
noise and blight, but also increased rates of crime and of neighborhood
children being drawn into drug abuse.93
91. Tucker Carlson, Smoking Them Out: How to Close Down a Crack House in Your Neighborhood, POL’Y REV., Winter 1995, at 56.
92. See id.
93. See id.; Smoking Them Out: Community Efforts to Shut Down Crack Houses, NEWS BRIEFS
(Nat’l Drug Strategy Network, Silver Spring, M.D.), February 1995, at 1, available at http://www.
ndsn.org/feb95/crackhou.html; Bruce Cadwallader, Jackson Invites Drug Fighter to City, COLUMBUS
DISPATCH, May 10, 1991, available at 1991 WLNR 4618112; Yvonne Latty, Mantua Drug Warrior Dies
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In 1986, Herman Wrice, an African-American who had run rehabilitation programs for addicts in other states, moved back to Philadelphia.94
There he helped run an inner-city sports league in Mantua.95 When he
became fed up with the drug dealers’ influence over the neighborhood’s
youth, he formed Mantua Against Drugs (“MAD”) to confront the drug
dealers and to drive them out.96
MAD would picket and harass crackhouses, sometimes by blocking
entry to customers or by singing and chanting outside the house to embarrass those within.97 The drug dealers and demonstrators sometimes
ended up in shoving matches, which occasionally escalated to brickthrowing battles.98 MAD also pressured utility companies to cut service
to the houses to drive the dealers out.99 When the dealers left, MAD
would board up the houses to prevent reentry.100 The group also went to
bail hearings for drug dealers, where they would interrupt defense counsels’ presentations in an attempt to intimidate the locally-elected judges
into setting higher bail.101
MAD’s efforts seem to have paid off, in part because they eventually embarrassed local authorities into taking the drug problem more
seriously.102 The 1644 felonies in Mantua in 1989 dropped by forty percent by 1993.103 In later work, Wrice trained “street warriors” in over 350
communities.104 Chants, marches, and vigils are now implemented in
many neighborhoods around the country using his methods.105 Even the
Justice Department asked him to serve as a technical consultant on a
program that helps neighborhoods fight crime.106
The means used by MAD may fall within the permissible scope of
the moral vigilante rules and may even be somewhat restrained given the
frustration of the community. But clearly such confrontations risked spiraling into greater violence. The intimidation of judges by MAD members is more troubling, however, as there are serious societal risks that
can come from this sort of interference with legal proceedings.
Herman Wrice Stricken in Fla. Before March, PHILLY.COM (Mar. 11, 2000), http://articles.philly.com/
2000-03-11/news/25604360_1_herman-wrice-wrice-process-drug-dealers.
94. Carlson, supra note 91.
95. Latty, supra note 93.
96. Carlson, supra note 91.
97. Id.
98. Id.
99. Id.
100. Id.
101. Id.
102. See id.
103. Id.
104. Mireya Navarro, Residents Disrupting Drug Trade, N.Y. TIMES, Aug. 30, 1996, http://www.
nytimes.com/1996/08/30/us/residents-disrupting-drug-trade.html.
105. Id.
106. Id.
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2.
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Detroit Crackhouse Burnings
Detroit suffered from the same crack epidemic as Philadelphia, but
in a somewhat more dangerous form: the drug trade was run by heavilyarmed gangs willing to commit brutal and bloody violent acts to protect
their trade. The crackhouses brought to the neighborhood not only the
predictable crime but also common and random gunfire. Chanting and
singing outside crackhouses probably would not have been an effective
strategy there.
Outraged at the failure of authorities to deal with the problem and
the toll that it took on the neighborhood, two local men, Angelo Parisi,
an unemployed landscaper, and Perry Kent, an unemployed mechanic,
took the lead in trying to get police to act to stop the open criminality,
but with little effect.107 After discussions throughout the neighborhood,
the two men settled on their own plan: burn the crackhouses down.108 The
neighborhood took up a collection to buy the canisters of gasoline, which
Parisi and Kent used to burn down a crackhouse in October 1988.109
Authorities charged Parisi and Kent with arson, and considered
pressing conspiracy charges against the neighbors who contributed to the
fund.110 One local resident began a fund to help pay for the two men’s defense, noting that “[n]inety percent of the people in this block support
them. When they set the fire, everybody in the neighborhood knew they
were going to do it and they knew why they were going to do it.”111 Even
neighbors who did not necessarily approve of the methods used agreed
that what they did was beneficial, or, at the very least, an understandable
result of the men’s frustration with the authorities.112 As one neighbor put
it, “I don’t agree with their means . . . . But I don’t want a crack house in
my neighborhood. They did what they thought they had to do.”113 At
trial, despite overwhelming evidence of the men’s guilt, the jury refused
to convict, acquitting both men of all charges.114
Not long after this acquittal, crackhouses in other parts of Detroit
were burned or demolished by neighbors.115 Neighbors stormed other
crack houses wielding pipes and baseball bats to drive the dealers out. 116
107. See 2 Acquitted in Torching of Alleged Crack House, CHI. TRIB., Oct. 7, 1988, at 3, available
at 1988 WLNR 1743232; Editorial, Crack; A Disaster of Historic Dimension, Still Growing, N.Y.
TIMES, May 28, 1989, at E4, available at 1989 WLNR 2085372; Neighborhood Dilemma: Fight Crime
With Crime?, ASSOCIATED PRESS, Feb. 13, 1988, http://www.apnewsarchive.com/1988/NeighborhoodDilemma-Fight-Crime-With-Crime-/id-bb0554af524430c9aea95d505045feb9 [hereinafter Neighborhood Dilemma]; Isabel Wilkerson, ‘Crack House’ Fire: Justice or Vigilantism?, N.Y. TIMES, Oct. 22,
1988, http://www.nytimes.com/1988/10/22/us/crack-house-fire-justice-or-vigilantism.html?pagewanted
=all&src=pm.
108. See Neighborhood Dilemma, supra note 107.
109. Id.
110. Id.
111. Id.
112. See id.
113. Id.
114. Wilkerson, supra note 107, at 1.
115. Id. at 2.
116. Id.
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Passing motorists honked their horns in celebration, and the crowd of onlookers applauded as the dealers ran.117
Clearly, Detroit’s house-burning approach created greater potential
for a disaster than did the MAD approach in Philadelphia. But it is possible that the sufferings and dangers in Detroit may have been worse
than those in Philadelphia. In the minds of the neighborhood members
involved, at least, their sufferings justified the risks.
From the larger societal perspective, it obviously would have been
better for law enforcement officials, rather than the neighborhood, to
deal with the crackhouses. An official enforcement action could have
avoided not only the confrontation risks, but also the subsequent vigilante action by others that the initial act inspired.
3.
Black October and the Off-the-Pusher Movement
In Baltimore, when authorities did little to fix the endemic drug
problem, antidealer graffiti appeared on inner-city walls urging people to
“Off [kill] the pusher,” as the only way to get drugs out of the community.118
On July 13, 1973, a group calling itself “Black October” called a local newspaper to tell it that Turk Scott could be found in the basement
parking lot of his apartment building.119 Scott was a local heroine trafficker who was at the time indicted on eight criminal counts, involving
the attempt to sell forty pounds of heroin worth millions of dollars.120 Police found him surrounded by spent shell casings and twenty-five copies
of a flyer with a warning message for other local dealers: “These Persons
Are Known Drug Dealers. Selling drugs is an act of treason. The penalty
for treason is death!! Black October.”121 Scott had been shot more than
seven times by multiple shooters. 122
Six days later, George Evans, another local drug dealer with a criminal record for narcotics offenses dating back more than a decade, was
117.
118.
Id.
For sources on the facts of this case, see, e.g., Antidrug Group, Slaying Linked, MILWAUKEE
SENTINEL, July 19, 1973, at I-6 available at http://news.google.com/newspapers?nid=1368&dat=197
30719&id=VtAVAAAAIBAJ&sjid=iREEAAAAIBAJ&pg=7277,702072; Karlyn Barker, Dobson
Guilty of Kidnapping, Robbery, Acquitted of Murder, WASH. POST, Dec. 12, 1973, at B1–B2; Black
October Defends its Policy of Killing, WASH. POST, Aug. 27, 1973, at C2; Legislator, Indicted in Drug
Case, Fatally Shot, L.A. TIMES, July 14, 1973, at A4; Minister’s Son Charged with Murdering Legislator,
SPARTANBURG HERALD-JOURNAL, July 20, 1973, available at http://news.google.com/newspapers?nid
=1876&dat=19730720&id=OpoeAAAAIBAJ&sjid=Qs0EAAAAIBA&pg=7404,4003449; Slain Legislator Shot Seven Times: Anti-Drug Group Takes Credit for Killing Md. Man, PHILA. TRIB., July 17,
1973, at 1; Edward Walsh, Md. Del. Turk Scott Slain in Baltimore, WASH. POST, July 14, 1973, at A1;
Edward Walsh, Baltimore Jury Indicts Suspect, 20, in Slaying of Indicted Md. Delegate, WASH. POST, at
D4, July 21, 1973.
119. Slain Legislator Shot Seven Times, supra note 118. Walsh, Md. Del. Turk Scott Slain in
Baltimore, supra note 118.
120. Walsh, Md. Del. Turk Scott Slain in Baltimore, supra note 118, at A6.
121. Id.
122. Id.
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shot to death.123 Black October again took responsibility, sending a typed
statement to the same Baltimore newspaper in which the group claimed
that it would use any means necessary.124 The letter expressed frustration
with local police, saying that “[i]t is necessary now, after years of depending on corrupt police, to solve our own problems by any means necessary
and available.”125 The letter concluded by again exhorting the public to
“[o]ff the pushers.”126 In a manifesto presenting, among other things, “10
Black Laws,” it argued that, given how ineffective the authorities were,
killings like that of Scott Evans were the only way to solve the drug problem.127
After much investigation, the only member of Black October to be
identified was a young man named Sherman W. Dobson, a college student from a Baltimore family.128 He had no criminal record, and had been
active in the civil rights movement and other community activities.129
While Dobson awaited trial, the community reaction was surprising given
the murders that had occurred. Some were happy that someone was doing something to get rid of the heroin dealers. One writer praised Black
October’s actions: “[i]t is my opinion that ‘Black October’ is doing the
most beneficial job of combating and eradicating the distribution of
drugs into the community.”130
On December 13, 1973, after fourteen hours of deliberation, the jury deadlocked on the murder charge, settling instead for a compromise
verdict that held Dobson liable for a taxi hijacking that occurred earlier
on the night of Scott’s murder, presumably in preparation for the killing.131
Baltimore was not alone in this violent response to drug dealing. A
social worker in Washington, D.C. told the press that the most effective
solution to the drug problem was “killing the pusher.”132 An apparently
organized group in New York undertook a campaign of killing drug
pushers, sometimes by throwing them off building rooftops.133 Ten were
killed in a period of eighteen months.134
123. Antidrug Group, Slaying Linked, supra note 118, at I-7.
124. Letter to the Editor, Black October’s Letter to Paper, WASH. POST, TIMES HERALD, July 19,
1973, at A7.
125. Id.
126. Id.
127. Id.
128. Walsh, Baltimore Jury Indicts Suspect, 20, in Slaying of Indicted Md. Delegate, supra note
118, at D1.
129. Id.
130. Letter to the Editor, Black October, PHILA. TRIB., Aug. 14, 1973, at 8.
131. Barker, supra note 118, at B1.
132. William Raspberry, Black Vigilantes May Start Killing Pushers of Heroin, TUSCALOOOSA
NEWS, Feb. 13, 1972, available at http://news.google.com/newspapers?id=lgMdAAAAIBAJ&sjid=
QJwEAAAAIBAJ&pg=5399,2306760&dq=heroin+vigilante+killed&hl=en.
133. See id.
134. For additional incidences of pushers being killed by vigilantes, see Snejana Farberov, Trio of
Vigilantes ‘Killed and Dismembered Drug Dealer, 19, with a Machete in Bid to ‘Rid the World of Evil,’
DAILY MAIL, Jan. 17, 2013, http://www.dailymail.co.uk/news/article-2264219/Trio-vigilantes-killeddismembered-drug-dealer-19-machete-bid-rid-world-evil.html; Suspect Held in Vigilante Killing,
No. 2]
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Clearly, killing dealers is significantly more criminal then burning
crack houses. The practice would seem to violate many, if not most, of
the rules that might morally justify vigilante action. Particularly distressing is the fact that Turk Scott was awaiting trial for drug dealing when he
was murdered.135 Apparently, those involved had little trust in the court’s
ability to deal effectively with the problem, even after the large-scale
dealer had been indicted.
Taken together, these three cases show how easy it is for moral vigilante action to slide into immoral action. When the morally-defensible
efforts are ineffective, the next logical step is to do a little more, until
something does work. If harassing dealers does not work, then burning
down their place of business is a logical next step. If that does not work,
pushing them off the roof certainly will.
B.
Legitimizing Law-Breaking and Inspiring Extremists
Another problematic aspect of even moral vigilantism is its effect in
legitimizing law-breaking. Once a group takes the law into its own hands,
especially when the action is seen and accepted by the community as
morally justified, it creates a dangerous precedent. This precedent makes
it that much easier for others, perhaps not so devoted to staying within
moral bounds, to take the law into their hands, too. Indeed, the open acceptance of law-breaking may inspire others with quite extreme views
toward vigilante acts that the community would consider as seriously
condemnable. Consider a few examples.
1.
Project Perverted Justice
In 2003, a group of computer-savvy volunteers, led by a man adopting the nom de guerre of Xavier von Erck, formed Perverted Justice in
the belief that pedophiles were using the expanding web technologies to
better lure children for abuse.136 Consisting of former abuse victims, retired law enforcement officers, and civilian volunteers, the group would
find and monitor online chat rooms where pedophiles were trying to
make connections with teenagers.137 Once they identified a predator
trolling, the group would embarrass him to his spouse, significant others,
DAILY COURIER, June 1, 1984, available at http://news.google.com/newspapers?id=LotaAAAAIBA
J&sjid=R08DAAAAIBAJ&pg=2972%2C62710; The Message of a Vigilante Killing, N.Y. TIMES, Mar.
23, 1988, at A26.
135. Walsh, Baltimore Jury Indicts Suspect, 20, In Slay of Indicted Md. Delegate, supra note 118.
136. For sources on the facts of this cases, see, e.g., Allen Salkin, Web Site Hunts Pedophiles, and
TV Goes Along, N.Y. TIMES, Dec. 13, 2006, at A1; Marisa Schultz, Online Vigilantes Hunt Down Pedophiles, USA TODAY, Mar. 16, 2004, http://usatoday30.usatoday.com/tech/news/internetprivacy/200403-16-online-vigilantes_x.htm; Jason Trahan & Chris Colgin, Campaign Against Child Sex Predators
Draws Critics, DALL. MORNING NEWS, Sept. 11, 2006, available at 2006 WLNR 158770341; Eric Zorn,
Did Vigilante Catch Pedophile, or Wreck a Life?, CHI. TRIB., May 9, 2004, at 4C.1, available at 2004
WLNR 19814047. NBC’s Dateline wildly successful show “To Catch a Predator” was in partnership
with the group. See Salkin, supra.
137. Trahan & Colgin, supra note 136.
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employers, or the community by posting his chats with the teenage
girls.138 More aggressive forms of action included arranging to meet the
man and filming his embarrassment when they, rather than a young teen,
appeared for the meeting.139 As of 2014, the group claims to have assisted
587 chat-based convictions, and claims it has information-sharing agreements with hundreds of local police agencies, as well as the Department
of Homeland Security.140
But, by elevating the public’s emotional level of outrage against
child sex-abuse and showing that individual citizens could be as effective,
if not more effective than law enforcement, the group may have inspired
other individuals to immolate their efforts in less justifiable ways. For instance, by legitimizing such citizen conduct, the project also may have inspired harassment or abuse of suspected child molesters with little proof
behind the suspicion. For example, in 2006, Michael Anthony Mullen, incensed by a recent case he had heard about, pretended to be an F.B.I.
agent and arranged to “interview” two sex offenders living together in
Whatcom County, Washington. 141 When a third roommate left the
apartment, Mullen shot and killed the two offenders.142
Whenever a group is very public in drawing attention to a law enforcement failure, there are always risks that the attention may inspire
others to act, and perhaps in a way far beyond what the group would
support. When a vigilante group acts, the danger is even greater—
because part of the message of vigilante action is to suggest to citizens
that they really can, and perhaps should, act where the criminal justice
system has failed. That message makes it that much easier for the extremist to act by himself.
Consider two other examples of extremists inspired to vigilante action. Operation Rescue, for example, spent years intimidating and interfering with abortion clinics, which they saw as “baby killing mills,” eventually prompting Congress to enact the Freedom of Access to Clinic
Entrances Act (“FACE”) in 1994.143 Their activities are also thought to
138. Id.
139. Id.
140. Info for Police, PERVERTED JUSTICE, http://www.perverted-justice.com/index.php?pg=police
info (last visited Nov. 4, 2014).
141. The Michael Mullen killings of the two sex offenders was similar in this respect to the killing
by Scott Roeder of George Tiller, the abortion doctor. For sources on the facts of this case, see, for
example, Donna Blankinship, Man Turns Himself in for Killing 2 Child Rapists: Police Say They Believe Man’s Claim and That He Was Able to Locate the Victims Through a County Sheriff Website That
Lists Addresses of Sex Offenders, VANCOUVER SUN, Sept. 7, 2005, at A3, available at 2005 WLNR
27929411; Sharon Cohen, ‘Grim Reaper’ Confesses; Another Remains Jailed, AMARILLO GLOBENEWS, Dec. 26, 2000, http://amarillo.com/stories/2000/12/26/usn_grim.shtml; David Krajicek, Michael
Mullen, Sex Offender Vigilante, CRIME LIBRARY 3, http://www.crimelibrary.com/criminal_mind/
sexual_assault/duncan_and_mullen/4.html (last visited Jan. 9, 2015).
142. Krajicek, supra note 141, at 4.
143. For sources on the facts of this case, see, for example, 911 Call Reveals Cold-Hearted Attitude Toward MA Woman’s Abortion Death, OPERATION RESCUE (Dec. 6, 2007), http://www.operation
rescue.org/archives/911-call-reveals-cold-hearted-attitude-toward-ma-woman%E2%80%99s-abortiondeath/; Abortion Blockades on Decline Trend Was Established Before Buffer Zone Ruling, S.F.
CHRON., July 5, 1994, at A3, available at 1994 WLNR 2773712; Mary Mapes, No Mercy, HUFFINGTON
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have inspired Scott Roeder, a donor to the organization, to murder Dr.
George Tiller in 2009, fatally shooting him in the head while he was at his
church.144
Another example is the Animal Liberation Front (“ALF”), which
uses violence against institutions that use animals in research, railing
against “speciesism,” defined by one activist as “the belief that nonhuman species exist to serve the needs of the human species, that animals
are in various senses inferior to human beings, and therefore that one
can favor human over nonhuman interests according to species status
alone.”145 ALF members have threatened researchers and others. For example: “[l]et this message be clear to all who victimize the innocent [animals]: We’re watching. And by axe, drill, or crowbar—we’re coming
through your door. Stop or be stopped.”146
According to the Department of Justice, between 1979 and 1993,
ALF-affiliated individuals were responsible for more than three hundred
incidents of break-ins, vandalism, arson, and thefts committed in the
name of animal rights.147 Other forms of violent action included sending
letters booby-trapped with razor blades to scientists affiliated with research using animals, and the use of improvised incendiary and explosive
devices against property, and occasionally, against the homes of researchers.148
POST (July 25, 2009), www.huffingtonpost.com/mary-mapes/no-mercy_b_209529.html?view=print;
Sara Rimer, Abortion Foes in Boot Camp Mull Doctor’s Killing, N.Y. TIMES, Mar. 19, 1993, http://
www.nytimes.com/1993/03/19/us/abortion-foes-in-boot-camp-mull-doctor-skilling.html?ref=operationrescue&pagewanted=2; Isabel Wikerson, Drive Against Abortion Finds a
Symbol: Wichita, N.Y. TIMES, Aug. 4, 1991, http://www.nytimes.com/1991/08/04/us/drive-againstabortion-finds-a-symbol-wichita.html; Angela Williams & Fiona Morgan, The Murder of Dr. George
Tiller Recalls the Long History of Anti-Abortion Violence, INDYWEEK, June 3, 2009, www.indy
week.com/indyweek/the-murder-of-dr-george-tiller-recalls-the-long-history-of-anti-abortion-violence/
Content?oid=1215895&mode=print.
144. For sources on the facts of this case, see, e.g., Judy L. Thomas, Roeder Upset at Operation
Rescue, WICHITA EAGLE, July 25, 2009, http://www.kansas.com/news/special-reports/article100
9125.html; Karen Tumulty, George Tiller Murdered, TIME (May 31, 2009), http://swampland.time.
com/2009/05/31/george-tiller-murdered/; Williams & Morgan, supra note 143. After the killing, Roeder
expressed his disappointment at Operation Rescue for abandoning him, disavowing any connection
with him, and distancing their organization from his actions. Thomas, supra.
145. Dr. Steven Best and Anthony J. Nocella II, Behind the Mask: Uncovering the Animal Liberation Front, Introduction to TERRORISTS OR FREEDOM FIGHTERS?: REFLECTIONS ON THE LIBERATION
OF ANIMALS 8–63 (Stephen Best & Anthony J. Nocella II eds., 2004), available at www.pmpress.
org/content/fmd/files/Behind_The_Mask.pdf. For sources on the facts of this case, also see, e.g., Ecoterrorism: Extremism in the Animal Rights and Environmentalist Movements, ANTI DEFAMATION
LEAGUE, http://archive.adl.org/learn/ext_us/Ecoterrorism.asp (last visited on Nov. 4, 2014); Michael
Janofsky, Feds Accuse 11 of Ecoterrorism; Targeted Meatpacker, Ski Resort, Timber Firm, CHI. TRIB.,
Jan. 21, 2006, http://articles.chicagotribune.com/2006-01-21/news/0601210075_1_elf-and-alf-indictmentfederal-charges; Richard C. Paddock, UCLA to Take Activists to Court, L.A. TIMES, Feb. 21, 2008,
http://articles.latimes.com/2008/feb/21/local/me-animals21; Kirsten Scharnberg & Tim Jones, Ground
Zero of Labs vs. Animal-Rights Activists, CHI. TRIB., June 9, 2005, http://articles.chicagotribune.
com/2005-06-09/news/0506090213_1_animal-rights-research-labs-animal-liberation-front.
146. Scharnberg & Jones, supra note 145.
147. Ecoterrorism: Extremism in the Animal Rights and Environmental Movements, supra note
145.
148. Janofsky, supra note 145.
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The Training and Personal-Interest Problems
Another common problem that arises in vigilante action is a product of who it is that stands in for the government. Often, vigilantes lack
police training, but are attempting to perform essentially a policing function. Vigilantes also have a personal-stake in the problem, rather than
the dispassionate professionalism that we would hope for in police. Consider an example.
1.
Ranch Rescue
In the late 1990s, the ranchers trying to make a living along the
Mexican border, especially those in “the avenue of choice” for illegal
immigrants entering the United States, had long complained to the U.S.
Border Patrol about the failure to stem the flow of illegals.149 The illegal
crossers regularly killed their livestock, pulled down their fences thereby
allowing cattle to stray and get injured or stolen, damaged their trucks
and equipment, and broke into their houses.150 The easy and unchecked
flow across the border also attracted drug smugglers, who came heavily
armed and were highly dangerous.151
After getting no help despite their repeated pleas, several of the
ranchers organized “Ranch Rescue,” an organization that sought to do
what the government refused to do.152 Volunteers patrolled the border
using the same kind of equipment and tactics as the Border Patrol.153
Other organizations, such as Arizona Guard, were born from this effort.154 The group typically detained the trespassers and turned them over
to the Border Patrol.155 By 2006, Ranch Rescue claimed to have stopped
more than 12,000 illegal entries.156
Yet, the members of Ranch Rescue were hardly the best people to
have performing this role. They did not have the training to properly
screen suspects or to most effectively detain them without harm. But
even with better training, the members of the group would not have been
149. For sources on the facts of this case, see, for example, Craig Bannister, After Finding 13 Illegal Aliens Sleeping in His Barn, AZ Rancher Now Armed ‘24/7,’ CNSNEWS.COM (May 10, 2012 1:26
PM),
http://cnsnews.com/blog/craig-bannister/after-finding-13-illegal-aliens-sleeping-his-barn-az-ran
cher-now-armed-247; Border Security Through the Eyes of a Southern Arizona Rancher,
FOX10PHOENIX.COM (Feb. 20, 2013 10:42 AM), http://www.fox10phoenix.com/story/20962864/2013/
02/04/border-security-through-the-eyes-of-a-southern-arizona-rancher; Andrew Pollack, 2 Illegal Immigrants Win Arizona Ranch In Court, N.Y. TIMES, Aug. 19, 2005, www.nytimes.com/2005/08/
19/national/19ranch.html?pagewanted=all&_r=0; Mark Potok, Anti Immigration Vigilante Loses Lawsuit, UNITED PRESS INT’L, Nov. 23, 2006; Jerry Seper, 16 Illegals Sue Arizona Rancher, WASH. TIMES,
Feb. 9, 2009, http://www.washingtontimes.com/news/2009/feb/9/16-illegals-sue-arizona-rancher/?page
=all.
150. Seper, supra note 149.
151. Id.
152. Pollack, supra note 149.
153. Id.
154. Id.
155. Id.
156. Seper, supra note 149.
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a substitute for professional law enforcement officers detached from the
conflict. The ranchers were the most interested of parties, more likely to
have the emotional response of a person defending their property and
themselves. Mistake and overreaction seem inevitable in such situations.
Roger Barnett, one of the founders of Ranch Rescue, and Casey
Nethercott, one of its members, were both civilly sued by illegal immigrants for making angry threats and for the use of force when detaining
them.157 Nethercott ultimately lost his ranch in the civil lawsuits.158 While
the group was effective in stopping some illegal entries and successful in
dramatizing and humanizing the illegal entry problem—the number of
Border Patrol agents has doubled since that time159—the loss of this
ranch was an ignominious end to a project aimed at saving ranches.160
D.
The Displacement Problem
A final problem common to moral vigilante action is what might be
called the displacement problem. Consider an example.
1.
The Crown Heights Maccabees
In 1964, Crown Heights, New York, was awash in rampant crime
and violence. The Hasidic Jewish community stood isolated between two
high-crime areas, and persons from outside the neighborhood perpetrated most of the crime.161 Yeshiva students were regularly attacked
and robbed.162 Home invasions turned violent.163 People feared rapists
and muggers and became wary of even walking in the street.164 Shops began to close earlier and open later.165
A local resident, Rabbi Samuel Schrage, sought additional police
patrols, even meeting with New York Mayor Robert Wagner, but his repeated pleas were ignored.166 Schrage then formed the Crown Heights
157. Id.
159. Border Patrol agents on the Southwest border of the United States increased from 9100
agents in 2001 to more than 18,500 in 2013. See DEP’T. OF HOMELAND SEC., BUDGET-IN-BRIEF,
FISCAL YEAR 2014 71, available at http://www.dhs.gov/sites/default/files/publications/MGMT/FY%
202014%20BIB%20-%20FINAL%20-508%20Formatted%20%284%29.pdf; U.S. DEP’T OF HOMELAND SEC., BORDER SECURITY RESULTS (2013), available at http://www.dhs.gov/border-securityresults.
161. For sources on the facts of this case, see, for example, Austin Scott, Maccabees’ Patrol Helps
Reduce Crime, DAYTONA BEACH MORNING J., Dec. 21, 1964, at 3, available at http://news.google.
com/newspapers?id=DpMeAAAAIBAJ&sjid=mMwEAAAAIBAJ&pg=907%2C4655777; Matthew
Shaer, Tough Jews, TABLET MAGAZINE (Dec. 14, 2011), http://www.tabletmag.com/jewish-news-andpolitics/86067/tough-jews?all=1; Michael Seligson, Rabbi Samuel Schrage: The Maccabee, CROWN
HEIGHTS NEWS (Dec. 18, 2010), http://crownheights.info/crown-heights-news/30851/rabbi-samuelschrage-the-maccabee/.
162. Shaer, supra note 161.
163. Id.
164. Id.
165. Seligson, supra note 161.
166. Id.
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[Vol. 2015
Maccabees, a neighborhood watch group—one of the first of its kind—
with four squad cars, a radio network, and other equipment, all funded
by the community.167 The patrols were set such that no block of the
neighborhood would be without surveillance for more than two
minutes.168 More than one hundred residents volunteered and were given
instruction.169
The Maccabees’ goal was to be a deterrent force. The group was effective: when an outsider to the neighborhood would plan or begin an offense, they would then break off when the Maccabees came by on patrol
or in response to a radio call from their network.170 On some occasions, a
confrontation with suspects would ensue.171 But once the Maccabees’
practice became known, fewer offenders came to the neighborhood to
commit their crimes.172
The results were dramatic. From December 1963 to December
1964, crime fell by ninety percent.173 A serial rapist attacking women in
the areas around that patrolled by the Maccabees never attacked within
their area again.174
But the striking success of the Maccabees was also a problem. Many
of the robberies and rapes that were deterred in the Maccabees area may
well have been simply displaced to surrounding neighborhoods, aggravating the growing disparity in crime rates. The adjacent areas were predominantly African-American. The crime-rate disparity, along with
claims of racial profiling, increased racial tensions, sometimes to the boiling point.
If the government had taken its obligation to keep all of its citizens
safe more seriously—if it had not left the Jews in Crown Heights to fend
for themselves—it likely could have avoided the crime disparity and the
racial tensions. Only a society-wide crime-control program can be truly
effective. Vigilantes, almost by definition, cannot provide this.
E.
The Solution
Vigilantism, even when it is moral and effective, is no substitute for
official action. Whenever community members feel compelled to do what
the criminal justice system has failed to do, they can never be an effective
replacement and will always incur a societal cost that could have been
avoided.
But the solution to the problem is not to insist that the potential
moral vigilantes simply suffer in silence. First, this may not be possible:
167.
168.
169.
170.
171.
172.
173.
174.
Id.
Shaer, supra note 161.
Id.
Id.
Id.
Id.
Scott, supra note 161, at 3.
Id.
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strong feelings of disillusionment and victimization often spark action.
More importantly, it ought not be asked: the government has obligations
to its citizens under its social contract, and the government is not free to
simply choose not to perform them. The criminal justice system ought to
take seriously its obligation to assure that justice is done and crime is
avoided whenever possible, so that people are never put in the position
of having to consider moral vigilantism.
Prosecuting the vigilantes is possible, of course, but that may only
contribute to the community’s cynicism: the same system that is apparently unable to effectively punish drug dealers seems fully capable,
somehow, of punishing those willing to step in to do the government’s
job in fighting them. Thus, the prosecution of the moral vigilante could
change a community’s view from feeling that the system is simply indifferent to the problem, to a feeling that the system is openly hostile to
solving it.
IV. SPARKING THE VIGILANTE IMPULSE: DOCTRINES OF
DISILLUSIONMENT
Against this backdrop, it is unfortunate that the U.S. criminal justice
system has adopted a wide range of rules, policies, and practices that essentially guarantee that serious offenses by blameworthy offenders
caught by the police nonetheless will go unpunished. Often by court decision, but sometimes as a result of insensitive policy-making or adjudication processes,175 the current system commonly adopts practices that it
knows will produce regular and serious failures of justice.
As noted at the start of this Article, some failures of justice may be
unavoidable and can be easily forgiven by even a demanding public. The
criminal justice system can only do so much to catch offenders and to reliably reconstruct what happened during some past event. Few people
are likely to hold such failures against a system otherwise trying its best
to do justice; the public would be appalled by the wrongful convictions
and unjust punishment that might result from cutting corners on reliable
adjudication of the facts. The doctrines at issue here are of a different
sort: they allow the escape from deserved punishment by serious offenders who are in custody and whose guilt is clear. The offender’s release
may be as much a surprise to him as it is a shock to the community. He
has won the lottery! But his release portrays to the community a criminal
justice system indifferent to the importance of doing justice.
Below are a few illustrations, all instances in which the system’s
rules worked as designed and written—these are not law-breaking rogue
judges at work—yet the resulting failures of justice can seem appalling to
the average citizen.
175. But sometimes through the distortion of American crime politics. See ROBINSON,
INTUITIONS OF JUSTICE, supra note 2, at 128–39.
430
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Unchecked Punishment Discretion
A common source of failures of justice is the exercise of idiosyncratic discretion by sentencing judges and parole commissions. Consider
several examples.
1.
Leaving Sentencing Discretion Unchecked
Fifteen-year-old Latasha Harlins walked into a liquor store in South
Central Los Angeles to buy a bottle of juice.176 The following encounter
was caught on the store’s security tape. As she walked up to the register,
Harlins put the juice in an outside pocket of her backpack, where it was
partially visible.177 She had two dollars in her hand to pay for it, but the
storeowner, Soon Ja Du, apparently did not see the money.178 She accused Harlins of shoplifting, which Harlins denied.179 Du grabbed at
Harlins to get the juice, which fell to the ground.180 Harlins responded to
the assault by punching Du in the face, knocking her down behind the
counter.181 Du then threw a stool at Harlins.182 Harlins placed the juice on
the counter, but Du knocked it away.183 Harlins turned to leave.184 Du
then shot Harlins in the back of the head with a .38 revolver from three
feet away, killing her instantly, with two dollars still clutched in her
hand.185
Du was indicted for first-degree murder.186 At trial, the judge dismissed the first-degree murder charge, leaving the jury only the offense
of voluntary manslaughter, of which Du was convicted.187 The judge used
her discretion to suspend a jail sentence, and instead sentenced Du to
five years probation, a $500 dollar fine, and community service.188
In another case, Vincent Chin, a young Chinese-American man, was
at a strip club in Highland Park, Michigan, for his bachelor party.189 At
176. For sources on the facts of this case see, e.g., People v. Du, 5 Cal. App. 4th 822, 825–27
(1992); see also Linda Deutsch, Prosecutor Says Korean Shopkeeper Didn’t Act in Self Defense,
ASSOCIATED PRESS (Oct. 7, 1991), http://www.apnewsarchive.com/1991/Prosecutor-Says-KoreanShopkeeper-Didn-t-Act-in-Self-Defense/id-1ad0f4210194be9581767d27d334ecb0; Karen Nikos, Miscarriage of Justice’ Claimed: Reiner Blasts Judge’s Probation Sentence for Korean Grocer in Slaying,
L.A. DAILY NEWS, Nov. 19, 1991.
177. See Du, 5 Cal. App. 4th at 826.
178. Id.
179. See id.
180. Id. at 826–27.
181. Id.
182. Id.
183. Id. at 827.
184. Id.
185. Id.
186. Id.
187. Id.
188. See id. at 829; see also Lisa Richardson, Legacy of the Riots: 1992-2002, L.A. TIMES, Apr. 27,
2002, available at 2002 WLNR 12418799 [hereinafter Richardson, Legacy of the Riots].
189. United States v. Ebens, 800 F.2d 1422, 1427–28 (6th Cir. 1986) (abrogated by Huddleston v.
United States, 485 U.S. 681 (1988)); Ross Parker, It’s Not Fair . . . Vincent Chin’s Last Words, CT.
LEGACY, Nov. 2007, at 1, 2, available at http://www.fbamich.org/Portals/31/Documents/Newsletters/
200711_Court_Legacy.pdf.
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the club, Chin got into an argument with Ronald Ebens and Ebens’ stepson, Michael Nitz.190 Ebens was a supervisor at a local auto factory and
mistakenly assumed that Chin was of Japanese descent.191 During the disagreement, Ebens made racially charged remarks, calling Chin a “chink”
and a “nip,” and claiming that “it’s because of you little motherfuckers
that we’re all out of work,” a reference to the difficulties the U.S. auto
industry was facing against Japanese imports at the time.192 The verbal
insults soon degenerated into a barroom brawl, in which Chin injured
Nitz.193 They were both ejected from the club but the confrontation continued outside.194 When Ebens took a baseball bat from his car, Chin and
his friends gave up any thought of further brawling and fled.195
Still angry, Ebens and Nitz cruised the area searching for Chin, and
paid an unemployed local resident $20 to help them find him and his
friends.196 When they did find him near a McDonald’s two blocks from
the strip club, Ebens attacked Chin with the baseball bat, striking him
repeatedly.197 Chin staggered outside and collapsed, where Ebens hit him
again, striking him twice in the head.198 Chin suffered severe head injuries, was declared brain dead, and died four days later.199
Ebens and Nitz were charged with second-degree murder.200 As a
supervisor at the nearby Chrysler plant in Detroit, where he had worked
for seventeen years, Ebens was popular at the plant and among his
neighbors in Eastpointe.201 County prosecutors allowed Ebens and Nitz
to plea guilty to manslaughter.202 Despite the probation officer’s presentence report recommending a prison term, the judge sentenced Ebens
and Nitz to a fine and three years probation.203 The judge later justified
his sentence by stating that “[t]hese weren’t the kind of men you sent to
jail . . . . You don’t make the punishment fit the crime: you make the
punishment fit the criminal.”204
Cases like Ja Du’s killing of Latasha Harlin and Ebens’ and Nitz’s
killing of Vincent Chin dramatically illustrate the problem of unchecked
sentencing discretion. People will judge that an offender’s sentence ought
to be the product of what was done, as well as his state of mind and capabilities at the time of the offense, not a product of his good or bad luck
in the sentencing judge he draws. Even more disillusioning is the possibil190.
191.
192.
193.
194.
195.
196.
197.
198.
199.
200.
201.
202.
203.
204.
Ebens, 800 F.2d at 1427–28.
Id.
Id.
Id.
Id.
Id.
Id. at 1428; Parker, supra note 189, at 2.
Ebens, 800 F.2d at 1428.
Parker, supra note 189, at 2.
Ebens, 800 F.2d at 1428.
Parker, supra note 189, at 3.
Id. at 1.
Id. at 3.
Id. at 3–4.
Id. at 4.
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ity of unchecked bias—for or against the race of the offender, or his victim, or for or against the outsider, or insider, or other status of the offender, or his victim. Is the well-connected local to be judged by a different standard than the wrong-colored victim?
Even setting aside egregious forms of bias and prejudice, individual
sentencing judges commonly look to idiosyncratic factors that few in the
community would support. For example, a recent empirical study showed
that a variety of factors have been used in mitigating criminal punishment, even though there is little public support for them: special talents
(only 10.6% of subjects supported this as a basis for mitigation, averaged
across a range of offense seriousness), good deeds before the offense
(15.0%), old age (22.3%), bad deeds or character (17.0%).205 Unguided
sentencing discretion simply invites biased sentencing at worst and idiosyncratic sentencing at best.
Much of the problem can be avoided by use of sentencing guidelines, which retain some judicial sentencing discretion to individualize
punishment, yet offer some guidance to reduce unjustified disparity. Yet,
as of 2006, almost two-thirds of the states—thirty-one of fifty—have no
sentencing guidelines.206 The system’s reputation for doing justice is likely
to suffer accordingly.
2.
Early Release of Parole
In 1980, while at a bar in Chester, Pennsylvania, Cornelius Ferguson
shot and killed a man.207 He was convicted of third degree murder, but
served only a short stint in prison.208 Soon after his release, in September
1985, Ferguson shot and wounded another man and was convicted of aggravated assault.209 As a result of this conviction, he was sentenced to five
years in prison for felony aggravated assault.210 His release on parole for
his earlier murder was revoked, but in 1991, in spite of his violent criminal record, he was again released on parole.211
205. Paul H. Robinson et al., Extralegal Punishment Factors: A Study of Forgiveness, Hardship,
Good-Deeds, Apology, Remorse, and Other Such Discretionary Factors in Assessing Criminal Punishment, 65 VAND. L. REV. 737, 740–66, 782 tbl.5 (2012).
206. The following states have no sentencing Guidelines: Arizona, California, Colorado,
Connecticut, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine,
Massachusetts, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico,
New York, North Dakota, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Vermont,
West Virginia, and Wyoming. Rachael E. Barkow & Kathleen M. O’Neill, Delegating Punitive Power:
The Political Economy of Sentencing Commission and Guideline Formation, 84 TEX. L. REV. 873, 1994
tbl.1 (2006).
207. For sources on the facts of this case, see, for example, Hameen v. State, 212 F.3d 226, 230–32
(3d Cir. 2000); Ferguson v. State, 642 A.2d 772, 784 (Del. 1994); Ferguson v. Pa. Bd. of Prob. & Parole,
534 A.2d 579 (Pa. Commw. 1987); Commonwealth v. Ferguson, 1987 Pa. Super. LEXIS 8078 (Pa. Super. Ct. May 27, 1987); see also Death Row Executions, STATE OF DEL., http://doc.delaware.gov/
deathrow/executions.shtml (last visited Nov. 4, 2014).
208. Ferguson v. Pa. Bd. of Prob. & Parole, 534 A.2d at 580.
209. Ferguson v. State, 642 A.2d at 784.
210. Ferguson v. Pa. Bd. of Prob. & Parole, 534 A.2d at 580.
211. Ferguson v. State, 642 A.2d at 784–85.
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Soon after his release, Ferguson shot and wounded Jimmy Mitchell,
but was not caught.212 About two months later, he arranged to meet with
Troy Hodges, a potential buyer for a half-kilogram of cocaine for
$10,000.213 Ferguson and his associate brought no drugs to the gathering,
apparently intending to rob Hodges instead of selling to him.214 During
the meeting, Ferguson shot Hodges in the back at point blank range, using the same gun he had used to shoot Jimmy Mitchell.215
Such cases of early release on parole no doubt leave much of the
public skeptical about the system’s motivations. Did the sentencing judge
impose the wrong sentence at the start? If so, why not fix that bad judging? If the sentencing judge did not err, why should the offender be released “early” at all? Why should he suffer anything less that the punishment he deserves?
Part of the problematic impression created comes from the system’s
demonstrated obfuscation. A sentence is publicly announced in court,
but turns out not to be the real sentence—indeed, the announced sentence may never be the sentence actually served. The public perception is
likely that some other group (the parole commission) announces the real
sentence in the privacy of the prison, out of public and local view. If the
system is designed to be this opaque, how many other outrageous cases
are as bad or worse than the outrageous case the citizen happens to hear
about?
It was in part a response to this problem that the federal Sentencing
Reform Act of 1984 introduced so-called “truth in sentencing,” which
abolished the U.S. Parole Commission and required that all offenders
serve at least eighty-five percent of the sentence imposed in court (but
will continue to have a period of supervision after their release).216 But
most states still retain some form of parole commission that provides
early release.217
B. Criminal Justice, the Game
Another source of disillusioning failures of justice are judicial decisions that treat criminal justice as a game in which players are given a set
of rules and the rules are to be blindly enforced no matter what the effect
on justice or fairness—rules for their own sake. A clever defense tactic
calculated to deceive can produce a dismissal with prejudice, even if the
212. Id. at 785.
213. Id. at 785–86.
214. Id. at 785.
215. Id.
216. H.R. REP. NO. 98-1017, at 114–15 (1984); see also S. REP. NO. 98-223, at 33–36 (1983) (“[T]he
sentencing judges and parole officials are constantly second-guessing each other, and, as a result, prisoners and the public are seldom certain about the real sentence a defendant will serve.”).
217. PAULA M. DITTON & DORIS JAMES WILSON, U.S. DEP’T. OF JUSTICE, BUREAU OF JUSTICE
STATISTICS SPECIAL REPORT: TRUTH IN SENTENCING IN STATE PRISONS 3 (1999) (“Fourteen States
have abolished early release by discretion of a parole board for all offenders. . . . A few other states
have abolished parole board release for certain violent or felony offenders (Alaska, New York,
Tennessee, and Virginia) or for certain crimes against a person (Louisiana).”).
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violation results in no actual unfairness to the defendant, or results in a
disadvantage that can be fully remedied through some less justicedistorting means. Consider several examples.
1.
Speedy Trial as a Sword Rather than a Shield
In August 1992, Kevin Healy picked up hitchhiker Laura Sage near
Cicero, Illinois.218 Sage offered to have sex with him for cash, money she
would spend on drugs.219 He agreed, and in November, when his wife was
in the hospital, Healy looked Sage up again.220 When they had a disagreement about how much Healy would pay, Sage threatened to tell his
wife.221 Angry, Healy kneeled on top of Sage, choked her, beat her with a
flashlight, strangled her to death, and dumped her body in the Chicago
River.222 After her body was found, a police investigation led to Healy,
who was arrested.223
In preparation for trial, the prosecution had ordered forensic samples, but due to delays at the laboratory, the prosecutor asked for a number of postponements to the start of trial.224 Each time a new date was
sought, Healy’s lawyer would say something like, “I have no problem
with any date in May, judge.”225 The first time this exchange occurred, the
trial judge, in an abundance of caution, asked defense counsel to confirm
that this was a “by-agreement date,” to which counsel repeated, “any
date in May, we will be there.”226
Healy was ultimately convicted of Sage’s murder and sentenced to
thirty years in prison, but his counsel argued on appeal that his carefullyworded statements were technically only an acquiesce, not an agreement
to the postponement, thus not technically a waiver under the speedy-trial
rules.227 Thus, Healy’s trial was begun 65 days past the 120 days from arrest that was allowed absent a waiver by the defendant.228 The appellate
218. See, e.g., People v. Healy, 688 N.E.2d 786, 787 (Ill. App. Ct. 1997); People v. Healy, 1992 WL
12580086 (Ill. Cir. Dec. 10, 1992); see also Maurice Possley & Jerry Thomas, Trial Delays May Set
Murderer Free: Appeals Court Voids Man’s Conviction in ‘92 Killing of Woman, CHI. TRIB., Dec. 5,
1997, http://articles.chicagotribune.com/1997-12-05/news/9712050153_1_illinois_supreme_court_trial
_act_conviction; David Southwell, Killer Freed Because He Was Denied Speedy Trial, CHI. SUN-TIMES,
Apr. 18, 1998, available at http://highbeam.com/doc/1P2-4441344.html.
219. Healy, 688 N.E.2d at 787.
220. Id.
221. Id.
222. Id.
223. Id.
224. Id. at 788–89.
225. Id. at 788.
226. Id.
227. Id. at 789, 791.
228. Id. at 789. The Illinois Appellate Court held that the defendant had no duty to inform the
trial court that the time limit was about to expire. Id. at 792. In response to this result, the Illinois statute that permitted Healy to walk free was later amended to prevent a similar result in the future.
“Now, a defendant may use [the speedy trial provision] as a ‘shield’ to prevent an untimely trial, but
not as a ‘sword’ to defeat a conviction after the fact.” Vill. of Mundelein v. Bogachev, 952 N.E.2d 91,
96 (Ill. App. Ct. 2011) (citation omitted).
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court reversed the conviction and Healy walked free, beyond prosecution
for his beating and murder of Sage.229
Again, much of the community will wonder how so trivial an inconvenience to Healy, with no indication of any real prejudice, made evident
in defense counsel’s acquiescence in the delay, could entitle him to beat
another human to death with impunity. And, in this instance, it appears
that this outrage is simply the product of clever gamesmanship by a smart
defense counsel—gamesmanship that the court apparently was willing to
honor in place of an assessment of any actual unfairness or inequity in
the situation. With these cases, the criminal justice system presents itself
as uninterested in justice and fairness, but rather as a system that sees the
process as a game, in which the cleverest gamer wins.
Few countries allow this kind of inflexible application of a speedytrial right.230 Countries that have such a right often use sanctions other
than dismissal and construct a sanction that attempts to compensate for
any fairness and equity.231 Most take account of a wide range of factors in
assessing a violation,232 including, for example, the impropriety of the
229. Healy, 688 N.E.2d at 792. The Illinois Supreme Court denied the state’s petition to overrule
the decision of the lower court. People v. Healy, 698 N.E.2d 546 (Ill. 1998) (table decision).
230. See, e.g., David Clark, The Icon of Liberty: The Status and Role of Magna Carta in Australian
and New Zealand Law, 24 MELB. U. L. REV. 866, 873 (stating that the right to a speedy trial has been
rejected in Australia and New Zealand); see R. v. Morin [1992] 1 S.C.R. 771 (Can.) (holding that the
right to a speedy trial is equivalent to a “trial within a reasonable time”).
231. See, e.g., Anthony G. Amsterdam, Speedy Criminal Trial: Rights and Remedies, 27 STAN. L.
REV. 525, 533–34 (1975) (noting that in England, the English Habeas Corpus Act of 1679 is commonly
interpreted to grant only “release from custody, but neither expedition nor abatement of the criminal
prosecution”). In the Netherlands, courts assess whether the right to be heard within a reasonable time
has been violated then, if a breach is found, the remedy is a reduction in the penalty that would have
otherwise been imposed. Martin Kuijer, The Right to a Fair Trial: Effective Remedy for Excessively
Lengthy Proceedings (Articles 6 and 13 ECHR), European Judicial Training Network Seminar: Effective Remedies, Lengthy Proceedings and Access to Justice in the EU 10 (Feb. 28, 2013). “The degree
to which the penalty is reduced depends on the degree to which the reasonable time limit has been
overrun and the severity of the penalty imposed.” Id. at 11. “In other European countries, legislative
reforms are underway.” Id. In Bulgaria, for instance, attempts have been made to create a right to
compensation for excessively lengthy proceedings. Id. “Draft legislative reforms [to the State and Municipality Responsibility for Damage Acts] are expected to be prepared by Ministry of Justice working
group during 2012 and adopted by the National Assembly thereafter.” Id. A similar initiative was taken in Slovenia and Portugal. Id.
232. See R. v. Morin [1992] 1 S.C.R. 771, para. 48 (Can.) (holding that courts should consider the
caseload of the jurisdiction and the prejudice to the accused). In Jago v District Court of NSW (1989)
168 CLR 23 (Austl.), the High Court of Australia held that, though there is no common law right to a
speedy trial, there is a right to receive a fair trial. If circumstances, including unreasonable delay had
the effect of depriving a trial of its fairness, then a permanent stay of the proceedings is warranted. Id.
However, courts in Australia do not grant this remedy readily and require demonstration of extreme
circumstances. Id.; see Robert M. Bloom, Judicial Integrity: A Call for Its Re-Emergence in the Adjudication of Criminal Cases, 84 J. CRIM. L. & CRIMINOLOGY 462, 487 (1993) (citing Jago v District Court
of NSW (1989) 168 CLR 23 (Austl.)). In Japan, Article 37(1) of the Constitution provides accused persons the right to a ‘speedy and public trial,’ a right modeled after the United States Constitution.
However, courts in Japan do not dismiss cases for failure to provide a speedy trial notwithstanding
that some cases may take well over a decade to try. The case involving the subway sarin incident, for
instance, has been proceeding for over a decade. CARL F. GOODMAN, THE RULE OF LAW IN JAPAN: A
COMPARATIVE ANALYSIS 497 (3d ed. 2012).
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prosecution’s conduct under the circumstances and the actual extent of
prejudice to the accused.233
2.
Enforcing Bargained Immunity Built on Defense Lies and
Deceptions
Consider another case, arising in a different context but with a
similar attitude about criminal justice. In the summer of 1979, Jean
Packwood and Donald Desbiens robbed three banks in San Francisco.234
Desbiens became worried that his girlfriend, Janette Pimentel, knew
about the robberies and could implicate them.235 To avoid this situation,
Packwood and Desbiens took her to a park in San Francisco in the early
morning hours of July 23, 1979, and “shot [her] to death execution
style.”236
Arrested in New York in 1980, Packwood confessed to the robberies but claimed that Desbiens had done the murder of Pimentel
alone.237 Desbiens had asked him to assist, he said, but he had refused.238
Based on this, Packwood worked out a plea agreement in which he pled
guilty to the bank robberies and received a reduced sentence in exchange
for assisting authorities in the prosecution of Desbiens for Pimentel’s
murder.239 The terms for the deal rendered it invalid if Packwood “willfully gave materially incomplete or false . . . information.”240
Later that year, authorities learned that two people had given
statements saying Packwood and Desbiens had murdered Pimentel together, including a statement reporting Packwood’s detailed description
of how they had done it.241 Eventually, Desbiens confessed to the murder,
describing how he and Packwood had done it, and was tried and convicted of it, and sentenced to life in prison.242
Prosecutors then sought to convict Packwood for his part in the
murder, but Packwood claimed his plea agreement protected him.243
Prosecutors pointed out that his deal was contingent on full and accurate
information.244 But Packwood argued that at sometime prior to the killing, Desbiens had asked, and Packwood had, at that moment, declined to
233. PAUL H. ROBINSON & MICHAEL T. CAHILL, LAW WITHOUT JUSTICE 250 (Oxford Univ.
Press, 2006) [hereinafter ROBINSON & CAHILL, LAW WITHOUT JUSTICE].
234. United States v. Packwood, 848 F.2d 1009, 1010 (9th Cir. 1988); James G. Jewell, Deaf,
Dumb & Blind: Canadian Justice at its Worst, THE POWER OF WORDS!!! (June 21, 2013),
http://jgjewell.com/tag/donald-desbiens/.
235. Packwood, 848 F.2d at 1010.
236. See id.; Jewell, supra note 234.
237. Packwood, 848 F.2d at 1010; Jewell, supra note 234.
238. Packwood, 848 F.2d at 1010.
239. Id.
240. United States v. Packwood, 687 F. Supp. 471, 472 (N.D. Cal. 1987) (aff’d 848 F.2d 1009 (9th
Cir. 1988)).
241. Id. at 473; Packwood, 848 F.2d at 1010.
242. Packwood, 848 F.2d at 1010.
243. Id.
244. See id.; see generally Packwood, 687 F. Supp at 472 (Packwood’s plea deal).
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participate.245 It was at some time later that he agreed to participate in
the killing.246 He argued, then, that his statement to authorities was not
false—he had declined to help, albeit only on an earlier occasion.247 He
argued that investigators should have asked a more specific question to
dispel the misperception he had given them.248 Applying the contract
principle that any an ambiguity in a contract is to be resolved against the
drafter, contra proferentem, the court accepted the argument and
quashed the indictment.249 Packwood’s clever moves, and the system’s
willingness to give deference to them—to treat the criminal justice
process as a game, rather than an exercise in fairness and justice—let
Packwood kill Pimentel with impunity.250
It is easy to see how a citizen could conclude that the law does not
care about the seriousness of the offense, the extent of the rule violation
or whether the offender suffers any actual unfairness or disadvantage.
The fact that Packwood’s clever ability to answer questions while omitting much of the truth was somehow worth more than the brutal killing
of Janette Pimentel is both disappointing and bewildering. It would be
little surprise if we found that the system’s reputation became badly
soiled by its apparent blindness to the meaning and importance of fairness and justice.
The American mindset in this context is no different from that
which gave deference to the defense counsel’s careful-language trick in
the Kevin Healy speedy trial case.251 As the average person will see it,
that trick was judged to be worth ignoring Healy’s brutal murder of
Laura Sage, just as Packwood’s trick here was judged to be worth more
than Janette Pimentel’s life. It is easy for the public to perceive a system
grown indifferent to the importance of doing justice; one that gives deference to such trickery, trivializing brutal killings. To the public, the system is beyond caring about actual unfairness and prejudice to defendants
and interested instead in playing the rules of the game.
This blindness to actual effects on fairness and justice is not typical
in the rest of the world, but rather a peculiar American approach. The
European Convention on Human Rights (“ECHR”) looks to the ultimate effect on fairness,252 rather than providing an automatic right to go
free. In the context of speedy trial, for example, the U.K. House of Lords
relies upon the ECHR provision to make clear that a remediable right
245. Packwood, 848 F.2d at 1010.
246. See id.
247. Id. at 1012.
248. Packwood, 687 F. Supp. at 474.
249. Id. at 473–75.
250. See id. at 473–74 ; Jewell, supra note 234.
251. In which the defense agreed to prosecution requests for trial continuations using careful language that they could later argue did not technically qualify as a waiver. See supra text accompanying
notes 224–29.
252. AG’s Reference No. 2 of 2001, [2003] UKHL 68, [10] (appeal taken from Eng.), available at
http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd031211/ref2-1.htm (“[T]he focus of [Article 6.1 of the European Convention on Human Rights] is on achieving a result which is, and is seen
to be, fair.”).
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exists only if the delay causes harmful consequences to a defendant.253
New Zealand takes a similar approach, holding that where a delay has
not affected the “fairness” of a trial, a remedy departing from normal trial procedure is unnecessary.254
C.
Defenses for Clearly Guilty Offenders
A final source of disillusionment is the practice of providing rules
that shield even clearly guilty offenders of very serious crimes. Consider
four examples.
1.
Exclusionary Rule
Larry Eyler picked up, tortured, mutilated, and murdered a series of
eighteen young men, including Gustavo Herrera and Ralph Calise.255 Police suspected Eyler in the killings, and began trying to follow him during
his nighttime drives, but lacked probable cause to arrest him for the
murders.256 Early one morning, a highway trooper, who was unaware of
the investigation, happened upon Eyler parked on the side of the highway.257 The trooper made a U-turn and intercepted Eyler as he and his
passenger, now back in Eyler’s pick-up, attempted to leave.258 Unknown
to the trooper, Eyler was in the process of coaxing the intended victim,
Daryl Hayward, into the woods with a promise of money for sex and had
in his hand his kit of rope and tape.259 The trooper became suspicious
when Eyler was evasive in his answers and seemed like he was trying to
hide the kit he had been carrying when the trooper first saw him.260
The trooper radioed his headquarters to ask about Eyler.261 The investigators who had been following Eyler earlier that night, but had lost
him, overheard this call.262 They rushed to the scene and brought Eyler
and his truck back to the station for further investigation.263 Hayward
confessed that they were about to have sex for money.264 Eyler gave the
officers permission to take his boots, which the investigators noticed
matched the imprints left at a previous murder scene.265 He also gave
permission for them to search his truck, in which they found clothesline
253. Id. at [135].
254. Id. at [85] (discussing Martin v. Dist. Court at Tauranga (1995), 2 NZLR 419 (C.A.)).
255. Michael Newton, Larry Eyler, The Highway Murderer: Caged, CRIME LIBRARY 5, http://
www.crimelibrary.com/serial_killers/predators/eyler/caged_5.html (last visited Nov. 4, 2014).
256. Id.
257. Id.
258. Id.
259. Id.
260. Id.
261. Id.
262. Id.
263. Id.
264. Id.
265. Id.
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and surgical tape like that used in previous murders, as well as a bloody
knife.266
They did not arrest Eyler, but instead released him and his truck
later that day.267 However, they obtained a warrant to search the home
where Eyler was staying.268 There they found handcuffs, credit card
receipts, and phone records that tied him overwhelmingly to previous
murders.269 Laboratory analysis of the seized evidence confirmed their
suspicions.270
Eyler was later arrested for the murders.271 Eyler was released and
the seized evidence was suppressed, however, because a court determined that taking Eyler to the station for investigation was effectively an
arrest and that, at that point, there was insufficient probable cause to arrest Eyler.272 The court’s order excluded not only the evidence obtained
with Eyler’s permission at the station, but also the evidence obtained
pursuant to the warrant to search Eyler’s apartment, because the warrant
was based upon the illegally-seized evidence, and thus was excluded under the doctrine of the “fruit of the poisonous tree.”273
The inconvenience of the trip to the station and the twelve hours he
was detained meant, under the criminal justice system, that Eyler’s
tortures and killings of those eighteen young men could not be punished—that is forty minutes detention per killing. Eyler’s release is both
puzzling—even to Eyler—and an outrage. A frustrated Sheriff Robert
Babcox, as he watched Eyler drive off after release, said, “He is freed to
kill. Hell, it’s only a matter of time.”274
The inconvenience to Eyler seems so comparatively trivial. How
could it possibly justify letting him torture and murder eighteen young
men with impunity? If the violation of Eyler’s rights really was so serious
a violation as to justify letting Eyler go free, then why have not all of the
police officials who perpetrated this violation been put in jail? Why is the
only effect that Eyler can murder with impunity?
266. Id.
267. Id.
268. Id.
269. Id.
270. Id.
271. Id.
272. Id.
273. The trial court determined that the initial stop was proper, however, the following twelvehour detention at the police station was improper because it was not supported by probable cause. A
Terry stop only allows detaining a person based on a “reasonable, articulable suspicion of criminal
activity and the ‘frisk’ or pat-down search for weapons of the person detained,” thus to handcuff Eyler
and detain him at the police station required probable cause that he had committed an offense. People
v. Eyler, 132 Ill. App. 3d 792, 800 (1985). The trial judge determined that probable cause could not
flow from a statement from Eyler’s passenger (Daryl Hayward) since Hayward’s statement only established probable cause with respect to the crime of prostitution. See id. at 810. On appeal, the Appellate
Court of Illinois upheld the trial court’s finding that “there was a direct ‘nexus’ between the illegal
arrest of the defendant and the subsequent statement made by Hayward” and agreed that Hayward’s
statement did not establish probable cause to arrest Eyler because “the tainted statement [concerning
Eyler’s solicitation] cannot be used to establish probable cause to arrest [Eyler] on a separate crime.”
See id. at 806.
274. ROBINSON & CAHILL, LAW WITHOUT JUSTICE, supra note 233, at 148.
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To nonlawyers, the effect of the exclusionary rule is genuinely bizarre. The rule seems to ignore the seriousness of the offense, the reliability of the evidence, and the extent of actual unfairness to the defendant in order to focus on a trivial violation of defendant’s rights. As the
late Stanford scholar John Kaplan noted in 1974:
[T]he United States is the only nation that applies an automatic exclusionary rule . . . . [T]here are many other countries which do not
have a mandatory exclusionary rule but which seem to be at least as
able as we to prevent their police from intruding upon the rights of
citizens. In fact, their leading legal representatives express in private, and occasionally in public, a complete mystification that the
United States would adopt a rule that deprives the prosecution of
reliable evidence of guilt. In other words, the exclusionary rule is
hardly a facet of American jurisprudence that has aroused admiration the world over.275
The United States is still nearly alone in the world in applying an
automatic exclusionary rule,276 and even the few other countries that have
some form of exclusion take a significantly more flexible approach.277 The
Canadians, for example, reject the United States’ automatic exclusion in
favor of a discretionary approach that looks to the effect on the system’s
reputation. Section 24(2) of the Canadian Charter of Rights and Freedoms provides:
Where . . . a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by
this Charter, the evidence shall be excluded if it is established that,
having regard to all the circumstances, the admission of it in the
proceedings would bring the administration of justice into disrepute.278
In Eyler and cases like it, of course, it is excluding the evidence that
“would bring the administration of justice into disrepute” in the minds of
much of the community.279
The U.K. rules also show a greater concern for the importance of
doing justice. English law does not, for example, apply the “fruit of the
poisonous tree” doctrine when the “fruit” is reliable evidence, as in
Eyler.280 The European Court of Human Rights similarly rejects the
275. John Kaplan, The Limits of the Exclusionary Rule, 26 STAN. L. REV. 1027, 1031–32 (1974).
276. See James Stribopoulos, Lessons from the Pupil: A Canadian Solution to the American Exclusionary Rule Debate, 22 B.C. INT’L. & COMP. L. REV. 77, 93 (1999).
277. Id. at 84 (examining the exclusionary rule in England, Scotland, Australia, and Canada, concluding that each country uses the discretionary approach, which “leads to a more expansive and honest definition of constitutional rights”).
278. Id. at 119.
279. A Canadian Appellate Court noted:
Section 24(2) was written to constitute an intermediate position between the automatic exclusionary rule familiar to American Bill of Rights jurisprudence and the automatic inclusionary rule
of the common law for non-conscriptive real evidence . . . .
The main purpose of s.24(2) is to protect the reputation of the administration of justice.
R. v. Harrison, [2008] 89 O.R. (3d) 161 (Can).
280. The English exclusionary rule is explained as follows:
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United States’ automatic exclusion in favor an overall assessment of what
is fair: “The question which must be answered is whether the proceedings
as a whole, including the way in which the evidence was obtained, were
fair.”281
Overall, other countries tend to focus on the effects on justice and
fairness rather than on a mere technical rule violation.282 In the United
Kingdom, for example, whether evidence is admitted depends upon an
overall assessment of whether it would “have such an adverse effect on
the fairness of the proceedings that the court ought not to admit it.”283
The European Court of Human Rights holds that the European Convention of Human Rights “does not require suppression of evidence obtained through an illegal search and seizure,” but will provide it if is necessary for an overall fair trial.284
Six months after his release from the traffic stop incident, Eyler
used the same truck to pick up another young man, Danny Bridges.
Eyler then tortured, murdered, and dismembered Bridges’ body.285
2.
Double Jeopardy
When Melvin Ignatow’s girlfriend, Brenda Schaeffer, said she was
breaking up with him, he lured her to his house where he raped, tortured,
and murdered her with the help of a former girlfriend.286 The girlfriendaccomplice cooperated with police for a reduced sentence, but the jury
found her trial testimony muddled.287 With this, and Ignatow’s perjuring
of himself on the stand, Ignatow was acquitted and released.288 Soon after, the buyers of his old house were remodeling and found, in a heating
duct, photos that Ignatow had taken of the torture-murder session.289 Despite the incontrovertible evidence, and, despite his having obtained the
English law does not apply the ‘fruit of the poisonous tree’ doctrine when the “fruit” is reliable
evidence. For example, when a coerced confession leads to recovery of stolen property, the confession will be suppressed but the property will be admitted in evidence. Thus, the English exclusionary rule as applied to the fruits of excluded confessions is tempered by a reliability principle.
Gordon Van Kessel, Suspect as a Source of Testimonial Evidence: A Comparison of the English and
American Approaches, 38 HASTINGS L.J. 1, 29–30 (1986).
281. P.G. and J.H. v. United Kingdom, 2001-IX Eur. Ct. H.R. 195, ¶ 76 (2001).
282. Christopher Slobogin, A Comparative Perspective on the Exclusionary Rule in Search and
Seizure Cases 8 (Vanderbilt Pub. Law & Legal Theory Working Paper No. 13-21, 2013), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2247746.
283. Id. at 9.
284. Khan v. United Kindom, 31 Eur. Ct. H.R. 45, ¶¶35, 38 (2000), available at http://www.
bailii.org/eu/cases/ECHR/2000/195.html (“The central question in the present case [concerning suppression of illegally obtained evidence] is whether the proceedings as a whole were fair.”).
285. ROBINSON & CAHILL, LAW WITHOUT JUSTICE, supra note 233, at 148–49.
286. BOB HILL, DOUBLE JEOPARDY: OBSESSION, MURDER, AND JUSTICE DENIED 328 (William
Morrow & Co. 1995) [hereinafter HILL, DOUBLE JEOPARDY]; ROBINSON & CAHILL, LAW WITHOUT
JUSTICE, supra note 233, at 166.
287. HILL, DOUBLE JEOPARDY, supra note 286, at 241; ROBINSON & CAHILL, LAW WITHOUT
JUSTICE, supra note 233, at 164–65.
288. ROBINSON & CAHILL, LAW WITHOUT JUSTICE, supra note 233, at 165, 170.
289. HILL, DOUBLE JEOPARDY, supra note 286, at 281.
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acquittal by perjuring himself at trial, Ignatow was free from prosecution
for his horrendous murder.290
In another case, in March 1987, Brenda Spicer’s partially naked
body was found in a dumpster on the campus of Northeast Louisiana
University. 291 Spicer had been strangled; sperm was found in her rectum
and vagina, bruises were found between her legs, and saliva on her
breasts.292 Ivrin Bolden, a boyfriend of Spicer’s roommate who had a history of jealousy-fueled disputes with Spicer, was ultimately arrested and
tried for her murder.293 At trial he denied any involvement with Spicer’s
death.294 The available physical evidence was not overwhelming and he
was acquitted.295
Bolden then moved to Memphis with Spicer’s roommate, Joel
Tillis.296 In 1989, Tillis’ badly decomposed body, wrapped in red sheets,
was found in a ditch in Arkansas; she too had been strangled.297 Soon after, Bolden moved to New Jersey.298 Bolden’s new girlfriend told New
Jersey police that Bolden had admitted to the two murders.299 After questioning and a failed polygraph test, Bolden confessed.300 He gave a detailed account of his killing of Spicer: how he lured her to the storage
locker, raped and strangled her, and then dumped her partially nude
body on campus, facts that were confirmed by the forensic evidence.301
Even though he openly admitted murdering Spicer, the previous acquittal based on his perjured testimony barred his prosecution.302
Why should Ignatow and Bolden walk free from their horrible
crimes when we have such reliable evidence that they committed them?
Indeed, by their perjury they helped trick the system into a false acquittal
the first time around. Why should we let them rape and murder with such
impunity? The existing law’s answer will not be obvious to much of the
community.
290. Id., at 248, 303; ROBINSON & CAHILL, LAW WITHOUT JUSTICE, supra note 233, at 166, 170.
291. For sources on the facts of this case, see, e.g., Bolden v. Warden, W. Tennessee High Sec.
Facility, 194 F.3d 579, 580 (5th Cir. 1999); State v. Bolden, 680 So.2d6 (La. App. 3 Cir. 1996); Acquitted
Man Booked With Perjury, NEW ORLEANS TIMES PICAYUNE, Aug. 29, 1992, available at 1992 WLNR
808337; Basketball Slayings: Is Boyfriend Killer, or a Freak Victim?, NEW ORLEANS TIMES PICAYUNE,
July 9, 1989, [hereinafter Basketball Slayings], available at 1989 WLNR 499802; Bolden Faces Perjury
Charge in Louisiana, MEMPHIS COM. APPEAL, Mar. 10, 1992, available at 1992 WLNR 2658313; see
also Lawrence Buser, Families Believe They, System Were Fooled by Smiling 2-Time Killer, COM.
APPEAL, Mar. 9, 1992, [hereinafter 2-Time Killer], available at 1992 WLNR 2696410; Christopher
Rose, Murder Suspect Returned, NEW ORLEANS TIMES PICAYUNE, Aug. 18, 1991, available at 1991
WLNR 818104.
292. Bolden v. Warden, 194 F.3d at 580; Rose, supra note 291.
293. Bolden v. Warden, 194 F.3d at 580; 2-Time Killer, supra note 291.
294. Bolden v. Warden, 194 F.3d at 580.
295. Id. at 580, 585.
296. 2-Time Killer, supra note 291.
297. Rose, supra note 291; Murder Suspect Returned, supra note 291.
298. Bolden v. Warden, 194 F.3d at 581.
299. 2-Time Killer, supra note 291.
300. State v. Bolden, 680 So. 2d 6, 11 (La. App. 3 Cir. 1996).
301. Id.; 2-Time Killer, supra note 291.
302. Bolden was convicted of perjury in the Spicer case, and pled guilty to involuntary manslaughter for his killing of Tillis. Bolden v. Warden, 194 F.3d at 580–81.
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Yes, there is a “double jeopardy” prohibition in the U.S.
Constitution, but the courts are the ones who have filled in the meaning
of that phrase, and they have already recognized many obviously appropriate exceptions—instances where an offender may be twice put in
jeopardy at trial. For example, a retrial is permitted if an offender’s conviction is reversed, even though nothing in the constitutional language
authorizes this.303 Similarly, we allow a retrial if a first trial ends in a mistrial or a hung jury.304 We also allow a second trial, even after an acquittal, when brought by a different state, or by federal prosecutors, even if it
is prosecution for the exact same conduct alleged to be criminal.305 Why
not also except cases like Ignatow and Bolden, where there is compelling
evidence of guilt and the offender helped induce the wrongful acquittal
through perjury at trial?
Most countries, if they have a double jeopardy bar at all, would not
apply it in the rigid way the United States does.306 For example, most
countries allow appeals after acquittals.307 In the United Kingdom, under
303. See, e.g., Green v. United States, 355 U.S. 184, 189 (1957).
304. See, e.g., Richardson v. United States, 468 U.S. 317, 324 (1984); Oregon v. Kennedy, 465 U.S.
667, 672–73 (1982).
305. Heath v. Alabama, 474 U.S. 82, 89–90 (1985) (explaining that the dual sovereign doctrine
permits prosecution of the same offense in both state and federal court because “the States are separate sovereigns with respect to the Federal Government because each State’s power to prosecute is
derived from its own ‘inherent sovereignty,’ not from the Federal Government”); Paul G. Cassell, The
Rodney King Trials and the Double Jeopardy Clause: Some Observations on Original Meaning and the
ACLU’s Schizophrenic Views of the Dual Sovereign Doctrine, 41 UCLA L. REV. 693, 695–97 (1994)
(explaining double jeopardy in the context of the Rodney King trials). Again, nothing in the Constitution’s prohibition of “double jeopardy” authorizes an exception for such a second prosecution. Rather,
courts permit it by any number of arguments, saying, for example, that “jeopardy did not attach” because of some set of conditions or saying “jeopardy does not apply” because of some policy reason,
such as the “independent sovereignty” of state and federal jurisdictions. Double jeopardy also does
not apply when circumstances are such that the defendant is never actually “in jeopardy” of conviction
in the first trial. For example, if the defendant bribes the judge in exchange for acquittal in the first
trial, then the outcome was never in doubt and retrial is permitted. Aleman v. Judges of the Circuit
Court, 138 F.3d 302, 308–09 (7th Cir. 1998).
306. See Mario Chiavario, The Rights of the Defendant and the Victim, in EUR. CRIM.
PROCEDURES 541, 574 n.91 (Mireille Delmas-Marty & J. R. Spencer eds., 2002) (“The German provision allows the case to be reopened where the defendant’s case was helped by a false document or
false evidence, where a judge . . . committed a punishable offense; and where the acquitted defendant
makes a credible confession.”); K.N. CHANDRASEKHARAN PILLAI, DOUBLE JEOPARDY PROTECTION:
A COMPARATIVE OVERVIEW 37 (K.M. Mittal, 1988) (explaining that double jeopardy receives restrictive interpretation in England, Canada, and India in the common law tradition); Erin M. Cranman,
The Dual Sovereignty Exception to Double Jeopardy: A Champion of Justice or a Violation of a Fundamental Right?, 14 EMORY INT’L L. REV. 1641, 1649–51 (2000) (explaining that, although double
jeopardy exists in England and Australia, the rule is more flexible); Nyssa Taylor, England and Australia Relax the Double Jeopardy Privilege for Those Convicted of Serious Crimes, 19 TEMP. INT’L &
COMP. L.J. 189, 192 (2005).
307. M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 DUKE J. COMP. &
INT’L L. 235, 288–89 (1993) (“The concept of double jeopardy is interpreted differently by different
world legal systems . . . . In most continental European nations, however, the state may appeal an acquittal due to errors of law or questions of fact. A conviction may be reversed on appeal and a new
trial ordered, or the judgment may be revised without remand for a new trial . . . . Furthermore, legal
systems differ as to when jeopardy attaches.”); Elisabetta Grande, Italian Criminal Justice: Borrowing
and Resistance, 48 AM. J. COMP. L. 227, 256 n.74 (2000) (“In Italy, all parties may appeal the trial court
decision, no matter if the decision was one of acquittal or of conviction . . . . ”); David S. Rudstein,
Prosecution Appeals of Court-Ordered Midtrial Acquittals: Permissible Under the Double Jeopardy
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recent reforms, the prosecutor may apply to the Court of Appeals to retry an acquitted person for any of a list of serious offenses if there appears “new and compelling evidence” and the retrial would be “in the interests of justice.”308 These reforms contain a list of considerations that
the court is to take into account in judging the matter, including the likelihood of a fair trial, the passage of time since the first trial, the likelihood that the new evidence could have been presented in the first trial
but for prosecutorial error, and the existence of any other prosecutorial
failure “to act with due diligence or expedition.”309
Other British Commonwealth countries also have undertaken reforms. In 2008, New Zealand created an exception to the double jeopardy bar for offenses whose maximum punishment exceeds fourteen
years, where the defendant got an acquittal by committing an “administration of justice” offense—such as perjury, fabricating evidence, or
corrupting witnesses.310 The Council of Australian Governments permits
“retrial of the original offence or prosecution for a similar offence where
the acquittal is ‘tainted,’ . . . ”311 as occurred when Ignatow perjured himself at trial.
In other words, similarly to application of the exclusionary rule,
other countries are more likely to look at the full set of interests in balance and make a determination based upon many factors, including assessments of what justice and fairness require. Such an application is radically different from the United States’ approach of having a fixed rule
that ignores most interests—such as the seriousness of the offense, the
extent of the unfairness to the defendant, the defendant’s culpability in
gaining an earlier false acquittal, and the propriety of the prosecutor’s
conduct—and favors instead a technical rule applied in a rigid fashion.
Clause?, 62 CATH. U. L. REV. 91, 94–95 & n.22 (2012) (noting that, although France, Russia, Italy,
Mexico, and the Netherlands recognize double jeopardy, all generally allow the prosecution to challenge at least some acquittals by way of appeal).
308. Criminal Justice Act, 2003, c. 44, §§ 78(1), 79(1) (Eng.).
309. Id. § 79(2).
310. See NEW ZEALAND LAW COMMISSION, REPORT 70: ACQUITTAL FOLLOWING PERVERSION
OF THE COURSE OF JUSTICE 7–8, 11 (2001), available at http://www.lawcom.govt.nz/project/doublejeopardy/publication/report/2001/acquittal-following-perversion-course-justice. The changes were approved by Parliament in 2008. LAW REFORM COMMISSION OF HONG KONG, CONSULTATION PAPER:
DOUBLE JEOPARDY 3, 43 (2010), available at http://www.gov.hk/en/residents/government/publication/
consultation/docs/2010/DoubleJeopardy.pdf; see Diana McCurdy, Verdict of Public Hits the Courts,
NEW ZEALAND HERALD, June 27, 2004, at B08; Lesley Deverall, Majority Verdicts Get the All-Clear,
THE DOMINION POST, http://www.stuff.co.nz/dominion-post/news/politics/496239/Majority-verdictsget-the-all-clear (last updated June 6, 2008 12:47 AM).
311. Double Jeopardy COAG Law Reform Working Group, Double Jeopardy Law Reform:
Model Agreed by COAG 1 (April 2007), http://www.lccsc.gov.au/agdbasev7wr/sclj/documents/pdf/
mcloc_projects_double_jeopardy_coag_model.pdf (COAG Model).
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Statute of Limitations
On the evening of March 16, 1978, sixteen-year-old Lauren
Kustudick went to a local dance club to meet friends for an early St.
Patrick’s Day party.312 Her friends never arrived, but when a young man
(later identified as Herbert Howard) approached her to offer a ride
home, she accepted.313 As another young man drove, Howard jumped into the back seat, cracked Lauren in the face with his fist, and began to
severely beat her.314 The driver ignored Lauren’s pleas to stop the car.315
Howard, screaming obscenities and spitting on her, ripped off her clothes
and forcibly raped her.316 He also choked her, bit her, and burned her
with a cigarette.317 The beating was so severe it fractured her skull in multiple places.318 When the driver pulled into a gas station, Lauren fled,
completely naked, and was found by a Cook County Deputy Sheriff.319
Lauren was too traumatized to help investigators, but police nonetheless identified Howard as their primary suspect on their own.320
Howard was later released when Lauren was unable to participate in the
investigation and prosecution.321 In 1991, Lauren began seeing a rape
therapist.322 Through therapy, she was able to remember the attack and
to come to terms with the incident.323 At the urging of her therapist,
Lauren contacted the police.324 She picked Howard from a book of photographs as the man who beat and raped her, and her cooperation led police to confirm other evidence of Howard’s clear guilt.325
However, Illinois had a five-year statute of limitation for rape, and
by the time Lauren was able to help police, that limitation period had
run.326 Howard was immune from prosecution.327
In another case, in November 1982, in Brooklyn, New York, Donald
Holloman argued with Herman Turner and another man about the $100
he was owed for making a car repair.328 When a fight ensued, the un312. ROBINSON & CAHILL, LAW WITHOUT JUSTICE, supra note 233, at 53; Cook County Sheriff’s
Police Department Report (Mar. 17, 1978); Interview by Ryan McLennan with Lauren Kustudick in
Glenview, Illinois (Nov. 28, 2000) (notes on file with author).
313. ROBINSON & CAHILL, LAW WITHOUT JUSTICE, supra note 233, at 53.
314. Id.
315. Id.
316. Id. at 53–54.
317. Id. at 54.
318. Id.
319. Id.
320. Id. at 54–55.
321. Id. at 55.
322. Id. at 56.
323. Id.
324. Id.
325. Id. at 57.
326. Id.
327. Id.
328. See People v. Turner, No. 3361-1998, 1998 WL 35307751, *1 (N.Y. Sup. Ct. May 24, 1998),
aff’d 281 A.D.2d 568 (N.Y. App. Dir. 2001), vacated, 10 A.D.3d 458 (N.Y. App. Dir. 2004), aff’d, 840
N.E.2d 123 (N.Y. 2005); Kenneth Lovett, Goof-y Slay Case - Botch Keeps Man Free, N.Y. POST, Nov.
18, 2005, at 39, available at 2005 WLNR 23209880; Philip Messing, B’klyn Man Charged in 15-Year-
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armed Holloman picked up a stick and then a bottle, but was shot twice
by Turner, killing him.329 Police sought Turner for murder, but he fled to
South Carolina.330 When Turner returned in 1994, witnesses to the killing
tipped off police, who arrested him.331 He was indicted for second-degree
murder in 1998, sixteen years after the killing.332 Turner’s attorney supported giving a jury instruction that allowed conviction for either seconddegree murder or first-degree manslaughter.333 The intermediate manslaughter verdict offered the jury a ready compromise to avoid murder,
which they took.334 What the jury did not know was that Turner would
then go free because the statute of limitations on manslaughter had run,
leaving him unpunished for the killing.335
To the average citizen, the impunity with which Howard could rape
and Turner could kill is puzzling indeed. The basis for punishment is
clear. There is no suggestion that the prosecutors or investigators acted
improperly in any way. It is hard to see that Howard or Turner were seriously inconvenienced or disadvantaged by the delay in prosecution—
indeed, they have gotten the undeserved benefit of staying free while
they should have been in prison. And if the delay had disadvantaged
them in some way, their due process rights would allow them to challenge the delay as a violation.336
The continued justification for fixed statutes of limitations is unclear. Some states have essentially eliminated statutes of limitation, with
no apparent negative consequences.337 Most countries in the world have
no such fixed limitation period.338 England and Canada for example, rely
instead upon judicial balancing to assess whether a preindictment delay is
unwarranted and prejudicial, essentially engaging in a case-by-case fairness assessment.339
Old Murder, N.Y. POST, Mar. 28, 1998, at 12, available at 1998 WLNR 6578819; see also; Dan
Morrison, Man Charged in ‘82 Killing, NEWSDAY, Mar. 29, 1998, at A35, available at 1998 WLNR
612136; Editorial, Suspect Arrested in 1982 Brooklyn Slaying, N.Y. TIMES, Mar. 28, 1998, at B5, available at 1998 WLNR 3032634.
329. See Turner, 1998 WL 35307751, at *1.
330. Messing, supra note 328.
331. Suspect Arrested in 1982 Brooklyn Slaying, supra note 328.
332. Messing, supra note 328.
333. People v. Turner, 10 A.D. 3d at 459.
334. Id.
335. Id.
336. United States v. Lovasco, 431 U.S. 783, 790 (1977) (“[T]he due process inquiry must consider
the reasons for the delay as well as the prejudice to the accused.”).
337. Lindsey Powell, Unraveling Criminal Statutes of Limitations, 45 AM. CRIM. L. REV. 115, 148–
49 (2008) (highlighting that Wyoming and South Carolina have eliminated criminal statutes of limitation altogether and permit unduly preindictment delays to be addressed by due process challenges).
338. Id. at 149 (explaining that England and Canada, whose laws are in other ways quite similar to
those of the United States, do not have limitation periods for most criminal offenses); see also
ROBINSON & CAHILL, LAW WITHOUT JUSTICE, supra note 233, at 60–61.
339. Powell, supra note 337, at 149.
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Disillusionment and Lost Credibility
As social psychology studies reveal, reputation is primarily a function of perceived motivation.340 It is not the failures of justice themselves
that do the damage, as many of these failures are easily forgiven by a
community that understands the practical limits of reliably reconstructing
past events and abhors wrongful convictions and injustice. Doctrines like
the beyond-a-reasonable-doubt standard of proof and excluding coerced
confessions make sense to people even if some guilty offenders may go
free as a result. What is damaging to a system’s reputation are those instances, like the doctrines of disillusionment noted above, that suggest an
indifference to the importance of doing justice. Letting offenders who
are clearly guilty of serious offenses escape punishment for a seemingly
trivial technicality portrays a system willing to trade justice in order to
promote an interest that could be promoted in some other way.
The doctrines of disillusionment have a negative effect. No doubt
the U.S. criminal justice system has a better reputation than that of many
countries in the world.341 But its reputation is quite mixed, and could be
substantially improved with reform. In a 2011 Gallup poll, only twentyeight percent said they had a “great deal” or “quite a lot” of confidence
in the U.S. criminal justice system.342 It ranked far below the ratings of
many other institutions, including organized religion, the military, and
small business. Even the police ranked dramatically higher. At fiftyseven percent, the police have more than twice the percentage of people
expressing a ‘great deal’ or ‘quite a bit’ of confidence in them.343 Moreover, the reduced confidence in the criminal justice system has been consistent over the past two decades during which the polling has been
done.344
Part of the disillusionment arises from a common view that the
courts do not take the importance of doing justice seriously enough. An
earlier ABA-sponsored nationwide survey found that, when people were
340. Paul Robinson & John Darley, The Utility of Desert, 91 NW. U. L. REV. 453, 496 (1997).
341. See, e.g., MARK D. AGRAST ET AL., THE WORLD JUSTICE PROJECT RULE OF LAW INDEX
2012-2013 at 161, available at http://www.worldjusticeproject.org/sites/default/files/WJP_Index_
Report_2012.pdf (noting that in a global survey of ninety-seven countries, the United States ranked
twenty-sixth in the overall “Criminal Justice” category, which included questions pertaining to the
efficacy and impartiality of a country’s criminal justice system).
342. Lydia Saad, Americans Express Mixed Confidence in Criminal Justice System, GALLUP (July
11, 2011), http://www.gallup.com/poll/148433/americans-express-mixed-confidence-criminal-justicesystem.aspx. In 1999, the Hearst Corporation authorized a comprehensive national survey, “How the
Public Views State Courts,” that was coordinated by the National Center for State Courts. NAT’L CTR.
FOR STATE COURTS, HOW THE PUBLIC VIEWS THE STATE COURTS: A 1999 NATIONAL SURVEY 7
(1999). The survey found that only ten percent of the respondents felt the courts in their communities
handled cases in an “Excellent” manner. Id. Additionally, respondents who reported a higher
knowledge about the courts expressed lower confidence in courts in their community. Id. Forty-two to
fifty-seven percent of respondents said the slow pace of justice and the complexity of the law contributes “A Lot” to the cost of going to court. Id.
343. Saad, supra note 342.
344. Confidence in Institutions Poll, GALLUP, http://www.gallup.com/poll/1597/confidenceinstitutions.aspx (last updated Oct. 1, 2014, 12:00 AM).
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asked whether “[t]he courts let too many criminals go free on technicalities,” seventy-four percent of people agreed or strongly agreed (only sixteen percent disagreed or strongly disagreed).345
One can understand how the Supreme Court decisions during the
Warren Era in the 1960s could have produced this view, including decisions that applied the exclusionary rule in a variety of contexts and introduced the “fruit of the poisonous tree” doctrine.346 One Texas police
chief captured the mood of many at the time: “It’s the damnedest thing I
ever heard . . . ”347 President Dwight Eisenhower, who appointed Warren,
later concluded that making Warren the Chief Justice was a mistake in
light of Warren’s decisions in criminal cases, which some described as
“handcuffing police.”348 Many in Congress called for Warren’s impeachment following the Miranda decision, making a similar argument that the
decision was “handcuffing police” rather than the criminals.349 Truman
Capote, testifying before a U.S. Senate committee, said: “It seems almost
unbelievable to me that the police force of one of our major cities is literally frightened to death to ask the prime suspect a single question for
fear that their case against him might be jeopardized.”350 It may be no
surprise, then, that from 1965 to 1994 the percentage of Americans saying the courts were too lenient on criminals rose from forty-seven percent to eighty-five percent.351
One should not underestimate the significance of such discontent
from failures of justice. It is not just one more disagreement with a government policy, which is the way the scholarly and intellectual elites
sometimes view it. For laypersons, failures of justice are deeply disappointing and often even dramatically disturbing. A woman upset by the
light sentence for her husband’s killer reported it made her “sick to her
345. AMERICAN BAR ASSOCIATION, PERCEPTIONS OF U.S. JUSTICE SYSTEM 66 (1999), available
at
http://www.americanbar.org/content/dam/aba/migrated/marketresearch/PublicDocuments/per
ceptions_of_justice_system_1999_2nd_half.authcheckdam.pdf.
346. For example, the Court handed down Mapp v. Ohio, 367 U.S. 643, in 1961, Escbedo v.
Illinois, 378 U.S. 478, in 1964, and Miranda v. Arizona, 384 U.S. 436, in 1966.
347. Allen Rostron, The Law and Order Theme in Political and Popular Culture, 37 OKLA. CITY
U. L. REV. 323, 326 (2012).
348. DAVID A. NICHOLS, MATTER OF JUSTICE: EISENHOWER AND THE BEGINNING OF THE CIVIL
RIGHTS REVOLUTION 91–101 (Simon & Schuster Paperbacks 2008) (2007); Richard A. Leo, The Impact of Miranda Revisited, 86 J. OF CRIM. L. & CRIMINOLOGY 621, 622 (1996); see also Patrick Malone,
You Have the Right to Remain Silent: Miranda After Twenty Years, 55 AM. SCHOLAR 367 (1986).
349. Leo, supra note 348, at 622.
350. See George Gallup, 2 to 1 View: Confession Ruling Bad, SALT LAKE TRIB., July 27, 1966,
available at http://newspaperarchive.com/salt-lake-tribune/1966-07-27/page-7.
351. Tom R. Tyler, Public Mistrust of the Law: A Political Perspective, 66 U. CIN. L. REV. 847, 851
tbl.2 (1998) (citing U.S. DEP’T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1973, at
146–47 tbls.2.36, 2.37 (Michael J. Hindeland et al. eds., 1973)); BUREAU OF JUSTICE STATISTICS,
SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS, 1981, at 204–05 tbl.2.33 (Timothy J. Flanagan et al.
eds., 1982); BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS, 1994,
at 174–75 tbl.2.43 (Kathleen Maguire & Ann L. Pastore eds., 1995)); Rostron, supra note 347, at 326–
27.
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stomach.”352 People shocked by a justice failure have complained it is
“absolutely unconscionable,”353 it “keeps me up at night,”354 “it’s a travesty,”355 “it’s unbelievable . . . we’re devastated,”356 “it’s insanity.”357 The upset over a justice failure may be even more exaggerated for a victim: “I
will forever live with this shadow.”358 “There’s a sea of emotions I’ve had
since this happened. . . . I find [the sentence] very insulting.”359 A rape
victim explained she will “be forever marked” by the crime and the
case’s “embittering conclusion.”360
This discontent with the criminal justice system has led neighborhoods to increasingly take up the role of law enforcement for themselves,
a role that in many respects might better have been left a governmental
function, as some of the case studies above illustrate.361 The 2000 National Crime Prevention Survey estimated that forty-one percent of the U.S.
population lives in communities covered by neighborhood watch.362 The
report concludes that, “this makes Neighborhood Watch the largest single organized crime-prevention activity in the nation.”363 The degree to
which private entities have taken over law enforcement in this country is,
as one writer says,
[E]xtraordinary . . . . [P]rivate security officers vastly outnumber
public law enforcement officers, and spending on private security is
approximately double the spending for public law enforcement. For
the most part, this growth has all occurred within the past three or
352. Joseph Hosey, Wife of Man Killed by Drunk Driver Blasts Sentence & System, PATCH, (June
28, 2013, 4:49 PM), http://patch.com/illinois/channahon-minooka/wife-of-man-killed-by-drunk-driverblasts-sentence--system_05ac6b6d#.VBfJqvldWO7.
353. Entopticon, Comment to Former Asheville Firefighter Gets 4 Months for Shooting Cyclist,
MOUNTAIN XPRESS (Nov. 30, 2009, 11:07 PM), http://mountainx.com/news/community-news/former_
asheville_firefighter_gets_4_months_for_shooting_cyclist/.
354. Tom Sherwood, Bicyclist Disappointed in Hit-and-Run Sentence, NBC WASHINGTON (Apr. 4,
2013, 10:05 PM), http://www.nbcwashington.com/news/local/Bicyclist-Disappointed-in-Hit-and-RunSentence-201514801.html.
355. Bob Segall, 13 Investigates: Violent Criminals Released Too Soon?, WTHR.COM (Aug. 28,
2014, 3:03 PM)Oct. 25, 2012, http://www.wthr.com/story/19919959/violent-criminals-released-too-soon.
356. Julie Shaw, Parents of Man Who Died After ‘08 Subway Attack Are Angered by Pending Release of One Assailant, PHILLY.COM (July 2, 2010), http://articles.philly.com/2010-07-02/news/
24966557_1_subway-attack-fatal-asthma-attack-state-prison.
357. Don’t Mess With Texas: Home Intruder Shot & Killed; Criminals Family Thinks He Should
Have been Warned, GLENN BECK (Feb. 21, 2013 2:18 PM), http://www.glennbeck.com/2013/02/21/dontmess-with-texas-home-intruder-shot-criminals-family-thinks-he-should-have-been-warned/.
358. Mirta Ojito, Kidnapping Victim Angered at Her Abductors’ Sentences, N.Y. TIMES, Apr. 10,
1997,
http://www.nytimes.com/1997/04/10/nyregion/kidnapping-victim-angered-at-her-abductors-sen
tences.html.
359. Detroit Police Officer Upset with ‘Lenient’ Sentence Against Shooter, POLICE OFFICERS ASS’N
MICH., http://www.poam.net/the-police-beat/2012/detroit-police-officer-upset-with-lenient-sentenceagainst-shooter/ (last visited Nov. 5, 2014).
360. Cynthia Jones, Nashua Rape Victim Feels Cheated Out of Justice, NASHUA TELEGRAPH, May
8, 1982, at 1.
361. See KATY HOLLOWAY ET AL., U.S. DEP’T OF JUSTICE OFFICE OF CMTY. ORIENTED
POLICING SERVS., CRIME PREVENTION RESEARCH REVIEW NO. 3: DOES NEIGHBORHOOD WATCH
REDUCE CRIME? 6 (2008).
362. THE 2000 NATIONAL CRIME PREVENTION SURVEY: ARE WE SAFE?, NATIONAL CRIME
PREVENTION COUNCIL 39 (2001).
363. HOLLOWAY ET AL., supra note 361.
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four decades—only thirty-five years ago, there were more public
police officers than private security guards.364
Another sign of the criminal justice system’s reputational difficulties is
found in popular culture. Many of the worst failure-of-justice rules were
introduced in the 1960s and 1970s. Since that time, an entire movie genre
depicting discontent has blossomed. The doing-justice-where-the-systemhas-failed movie has become a fantasy favorite for Hollywood. Starting
with the wildly successful 1970s franchises of Charles Bronson’s Death
Wish and Clint Eastwood’s Dirty Harry, most big name actors have acted
in a vigilante flick, including Jodie Foster (The Brave One), Gerard
Butler (Law Abiding Citizen), Kevin Bacon (Death Sentence), Jeremy
Irons (Fourth Angel), Liam Neeson (Taken series), Denzel Washington
(Man on Fire), Christian Bale (The Dark Knight series), Robert DeNiro
(Righteous Kill), and Michael Douglas (Star Chamber), among many
others.365
It is not healthy for a society to have an entire entertainment genre
built around protagonists who are seen as heroes for breaking the law,
and audiences being thrilled by it. It is rare for these movie protagonists
to satisfy the requirements for being a moral vigilante (per the rules in
Section II.B.), but these protagonists are heroes nonetheless. Movie
writers must pay careful attention to people’s willingness to pay money
to see a particular movie. Therefore, movie writers tailor their movies to
their audience’s sensibilities, given that the success of their movie often
depends upon it. Heroic protagonists must be kept within a range of
conduct that the public will find admirable. The fact that protagonists are
admired despite their gross violation of the law reflects the negative public sentiment regarding the criminal justice system, as well as criminal
law, generally.
E.
Conclusion
The goal in this Part of the essay has been simply to illustrate the
existence of failure-of-justice doctrines so the reader can appreciate how
easy it would be for the average person to come to a skeptical view of the
system’s commitment to justice. Exactly how that balance of interests
ought to be struck for each doctrine is a project many times larger than
364. Ric Simmons, Private Criminal Justice, 42 WAKE FOREST L. REV. 911, 920–21 (2007).
365. See, e.g., Johnny Firecloud, 10 Best Vigilante Films, CRAVE ONLINE (Nov. 18, 2009),
http://www.craveonline.com/film/articles/142210-10-best-vigilante-films. Note that many of these movies use as triggers for the protagonist’s vigilante action some of the failure-of-justice doctrines discussed in Part IV, such as Law-Abiding Citizen (reliable DNA evidence excluded), Death Sentence
(improperly short sentence), and Sudden Impact, one of the Clint Eastwood’s Dirty Harry movies (evidence excluded for improper search). In a few instances, the story line plays upon the problems that
come from frustrated classic and shadow vigilantes who pervert the system—see Part V.C. of the Article—thereby requiring the hero to act, such as Righteous Kill (hero DeNiro must go classic vigilante to
do justice because frustrated shadow vigilante cops have planted evidence, allowing the guilty to hide
from justice), The Star Chamber (hero Eastwood takes down vigilante judge Douglas), and Brotherhood of Justice (Keanu Reeves as head of a high school vigilante group fighting crime, which spins out
of control—based on the real case discussed in Part IV.A.).
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this Article. The argument here is not that we ought to sacrifice our civil
rights and liberties to promote justice, or deny discretion to officials in
the criminal justice system. On the contrary, it would be highly unattractive to live in a society without those rights and liberties, or a society that
tolerated unjust punishment. The only issue here is how those rights and
liberties are to be protected and how injustice is to be avoided. It is urged
here that frustrating justice ought to be a matter of last resort, not first,
as it commonly seems to be. Intentionally frustrating justice is not cost
free. It has both deontological and practical crime-control costs, which
ought to be taken into account in formulating how the interests are to be
protected and advanced.
Many doctrines promoting nonjustice interests will not, in fact, conflict with doing justice. This is the case with all rules and practices that
touch on reliability in fact-finding, for example. Presumably everyone
abhors wrongfully convicting the innocent, and anything that creates a
risk of it. Thus, for example, the exclusion of coerced confessions, representation by competent counsel, and an opportunity to put on an effective defense are not at issue because they promote reliability. The conflict here arises only with regard to rules and practices that seek to go
beyond the accurate fact-finding goal of the criminal justice process to
promote some interest that seeks to bar liability and punishment despite
the clear guilt of the offender for a serious offense.
There is no dispute as to the importance of the interests that commonly motivate the failure-of-justice rules and practices. It is important
for a society to control police search and seizure, to protect the integrity
of the courts, to limit multiple prosecution attempts, to limit preindictment delay, to control police sting operations, to require speedy trials, to
enforce plea agreements as negotiated, and to allow the flexibility to individualize punishment. The argument here is rather that the means by
which these interests are advanced ought to take account of the costs,
both deontological and the practical crime-control costs, incurred when
these interests are promoted by means that intentionally allow serious
wrongdoing to go unpunished.
Can limitations on such justice-frustrating doctrines be morally justified? As John Rawls would have us consider: if one were in the Original
Position under the Veil of Ignorance, not knowing whether one would
end up in the world being Larry Eyler or his next victim, how would one
formulate the rules to properly balance our interests in fairness and effectiveness in controlling police and prosecutors or in promoting the integrity of the criminal justice process with our interest in punishing serious wrongdoing and maintaining the moral credibility of the criminal
law? In every rule and practice at issue here, it seems likely that the current U.S. position would not survive the Rawlsian Original Position.
Who would support a rule that values Eyler’s twelve hours of inconvenient detention over punishing him for torturing and murdering eighteen
young men with impunity? Who would support a rule that values
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Ignatow’s peace of mind in being free from prosecution after his perjuryinduced acquittal as more important than punishing him for his torture,
rape, and murder of Brenda Schaeffer? This is true even when one
throws onto the scales the interests of other guilty offenders in positions
similar to Eyler’s and Ignatow’s.
The absolutist American approach not only regularly produces failures of justice, but does so without improving the criminal justice system’s reputation for protecting human rights. Public perception of the
fairness of criminal justice in European countries is as favorable, if not
more favorable than that of the U.S. system. For example, in ten European countries (including the United Kingdom), over eighty percent of
people surveyed expressed the view that police and courts make fair and
impartial decisions.366 Contrast that with the United States, where only
twenty-eight percent of those polled had a “great deal” or “quite a lot”
of confidence in the U.S. Criminal Justice System.367 The World Justice
Project’s Rule of Law Index ranked the United States fourteen out of
sixteen countries in the protection of human rights among the Western
Europe & North American Regions.368
A better approach than the absolutist American rules would take
account of a wide range of factors and consider the larger issues. As noted previously, this is an approach common in European and general international practice.369 For instance, foreign courts consider the following:
was there actually any unfairness to the offender? To what extent was he
actually disadvantaged? Are there ways to compensate him for any disadvantage by means other that frustrating justice? What is the seriousness of the offense? What would be the cost to the system’s reputation
for fairness to not provide a defense? What would be the cost to the system’s moral credibility if a clearly blameworthy offender were given a defense? These inquiries seem preferable to the American rule-bound approach that commonly ignores everything but whether the rule as written
was technically breached.
V. SHADOW VIGILANTISM
The damage created when the system’s doctrines of disillusionment
inspire vigilante impulses argues for minimizing such effect, for working
to avoid a reputation for being indifferent to the importance of doing justice. It suggests a reconsideration of the system’s willingness to so freely
trade off justice to promote other interests.
Some people might argue, however, that the need is not so pressing
because, even if frustrated by the system’s intentional failures of justice,
people generally will restrain themselves from vigilante action. Most
366. JONATHAN JACKSON ET. AL., EUR. SOC. SUR., TRUST IN JUSTICE: TOPLINE RESULTS FROM
ROUND 5 OF THE EUROPEAN SOCIAL SURVEY 6–9 (2011).
367. Saad, supra note 342.
368. AGRAST ET. AL., supra note 341, at 25, 180.
369. See sources cited supra note 232.
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people are law-abiding by natural inclination. In the unusual case where
vigilantism does occur, follow-up instances can be effectively discouraged
by the threat of criminal prosecution. Thus, the current level of intentional failures of justice can be maintained, it might be argued, with little
danger. Whatever public frustration there may be can be deterred by the
threat of criminal prosecution, or perhaps simply vented by the emotional play of the vigilante fantasies in Hollywood movies, crime fiction, and
the like.
But this assumes that the damage of the doctrines of disillusionment
expresses itself only in explicit vigilante action on the street, what might
be called “classic vigilantism.” A closer look suggests otherwise. It can
and does express itself in less obvious and more damaging ways: in lowlevel but pervasive resistance to, and subversion of, the criminal justice
system, an effect that might be called “shadow vigilantism.”
When people see dramatic failures of justice like the cases above, or
even when they see a system that in many smaller ways shows an indifference to the importance of doing justice, that disillusionment may be
taken by some as the moral justification to manipulate the system to
compel that missing justice. These disillusioned individuals will not form
a vigilance committee like San Francisco’s or a street patrol like the
Lavender Panthers’. They will instead resist and subvert the system in
more hidden ways.
Perhaps juries will be more willing to ignore their legal instructions
and substitute their own notions of justice. Perhaps police officers will be
more inclined to justify lying in court about the circumstances of a
search—so called “testilying”—as their own form of “playing the game”
effectively. Truth and justice do not matter, only gamesmanship. Perhaps
police, prosecutors, and judges will be more inclined to make up their
own off-the-books investigative and prosecution rules. Perhaps sentencing judges and parole commissions will be more willing to look to their
own political or other special interests, or their own idiosyncratic personal views rather than to the system’s official rules. Part of the real danger
is that we cannot know just how much shadow vigilantism society engages in.
A.
Community Complicity in Classic Vigilantism
To appreciate the potential breadth of shadow vigilantism, consider
three examples of cases that display community complicity in classic
vigilantism.
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William Malcolm: Shielding the Killer of an Unpunished Child
Molester
In 1981, William Malcolm lived in East London with his wife and
her two children, a six-year-old stepdaughter and a nine-year-old stepson.370 He sexually abused both stepchildren on a regular basis.371 During
the trial, it came to light that he had been abusing his stepdaughter since
she was three years old.372 Caught and convicted of serial child abuse,
Malcolm was given a two-year jail term.373
Malcolm was released in 1984 to return to the same house to resume
life with the two children whom he had been convicted of abusing.374 Before the end of the year, Malcolm was again charged with abusing his
stepchildren, as well as other young victims in the neighborhood, convicted, and sent back to jail.375 After being released again, Malcolm lived
with a girlfriend and her five children.376 Malcolm continued to abuse
children.377 In one instance, he tracked down a former victim who testified against him in a previous trial and raped her again.378 He told her
that she was “asking for it” because she had helped send him to jail.379
In 1994, Malcolm was once again charged with sexually abusing
children.380 The charges involved four children, including children who
were living with Malcolm at the time.381 Among the charges were multiple instances in which children were “tied to a bed and forced to perform
sex acts.”382 Details of some incidents include Malcolm leaving abused
children shoeless in a bedroom, with carpet tacks spread on the floor
outside the room, so he would be alerted to a victim trying to escape.383 It
was also alleged that Malcolm frequently beat his victims with a belt.384
370. For sources on the facts of this case, see, for example, NIGEL CAWTHORNE, UNDERWORLD
U.K. VIGILANTES: FIGHTING CRIME WITH CRIME 88 (2010); Mary Braid, Uproar in Court as Paedophile Case is Dropped, INDEP. (London), Nov. 29, 1994, at 6 (on file with the University of Illinois Law
School Library); Mark Gado, The Slaughter of Innocence, CRIME LIBRARY 2, http://www.crime
library.com/criminal_mind/psychology/pedophiles/1.html (last visited Nov. 5, 2014); Gary Jones &
James Fletcher, We’ll Shed No Tears; Murdered Sex Fiend Who Lived in Shadow of Hatred, MIRROR
(London) (Feb. 19, 2000), available at http://www.highbeam.com/doc/1G1-60292519.html; Witness Plea
After Paedophile Killing, BBC NEWS (Feb. 19, 2000), http://news.bbc.co.uk/2/hi/uk_news/648475.stm.
371. Oliver Wright, Paedophile Shot Dead on Doorstep, TIMES (London), Feb. 19, 2000, available
at http://spotlightonabuse.wordpress.com/2013/02/18/paedophile-shot-dead-on-doorstep-19-2-2000-2/.
372. Mike Sullivan & Andrea Busfield, Gun Law, SUN (LONDON), Feb. 19, 2000, at 4.
373. Id.
374. Id.
375. Id.
376. Michael Horsnell, Freed Child Abuser Linked to Paedophile ‘Catweazle,’ TIMES (LONDON),
Nov. 30, 1994, available at http://spotlightonabuse.wordpress.com/2013/02/18/freed-child-abuser-linked
-to-paedophile-catweazle-30-11-94/.
377. Jones & Fletcher, supra note 370.
378. Id.
379. Id.
380. Id.
381. Id.
382. Gado, supra note 370.
384. Id.
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Prior to prosecution for the latest charges, Malcolm underwent a
psychological evaluation, which determined that he was a sexual psychopath.385 The report described him as having pedophile tendencies of a
“strongly sadistic nature.”386 Social workers suggested that he was “incurably psychopathic and violent.”387 At trial, the judge described the crimes
as “unspeakable,” but concluded that there could be no trial for the new
offenses because his earlier offenses made a fair trial impossible.388 The
judge explained that victims of the offenses could not realistically be expected to testify without mentioning previous abuse they had suffered
from him, and such mention would be prejudicial to the defendant.389
Malcolm was released from custody without restriction.390
The victims and neighbors were not happy by the court’s refusal to
even try Malcolm.391 A female victim expressed disbelief: “The judge says
he is not going to get a fair trial because of his history, but surely it’s that
history which proves what a dangerous man he is.”392 A male victim complained, “I didn’t have a childhood. I was petrified of him.”393 In court,
furious cries of “kill the pervert” came from the public gallery.394 After
being set free, Malcolm received death threats.395
Malcolm moved to a block of flats in Manor Park that overlooked a
common area where children frequently played.396 Sharing the apartment
with him was his current girlfriend and her several children, three of
whom were under the age of six.397
Residents of Manor Park were furious when they learned where
Malcolm lived.398 One neighbor explained, “There was a lot of trouble
when he first moved here . . . . You can’t do what he did without creating
an awful lot of enemies.”399 By lying about his background, Malcolm obtained a job across the street from a primary grade school.400
On February 18, 2000, at around 10 p.m., Malcolm answered the
door of his flat and was shot in the head with a single bullet.401 Neighbors
rushed out to see what had happened, and found him lying on the floor
385. Witness Plea After Paedophile Killing, supra note 370.
386. Id.
388. See Braid, supra note 370; David Williams & Nick Craven, Child Sex Pervert is Murdered by
Gunmen ‘Avengers,’ DAILY MAIL, Feb. 19, 2000.
389. Michael Horsnell & Simon de Bruxelles, William Malcolm: Freed Paedophile ‘Still a Threat
to Children,’ TIMES (LONDON), Dec. 3, 1994, available at http://spotlightonabuse.wordpress.com/2013/
02/17/william-malcolm-freed-paedophile-still-a-threat-to-children-3-12-94/.
392. Braid, supra note 370.
393. CAWTHORNE, supra note 370, at 88.
394. Williams & Craven, supra note 388.
397. Id.
398. Sullivan & Busfield, supra note 372.
399. Williams & Craven, supra note 388.
400. Id.
401. Gado, supra note 370; Child Sex Man Gunned Down, BIRMINGHAM EVENING MAIL, Feb. 19,
2000, available at http://www.highbeam.com/doc/1P2-17631454.html.
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still breathing but bleeding profusely.402 An ambulance arrived, but
Malcolm was pronounced dead on arrival at the hospital.403
News of Malcolm’s killing was greeted with jubilation.404 As one
neighbor explained, “I’m quite happy that people like him are out of this
community. I can understand quite clearly why someone would want to
have him out of the way.”405 Another neighbor reported, “nobody will
feel sorry, except maybe his relatives. I was shocked when I heard someone had been shot on the doorstep like that, but when I heard it was him
I was relieved.”406 Malcolm’s brother, Andy, said, “I want to shake hands
with his killers. . . . He was vermin, I’m glad he is dead . . . . [O]ur entire
family wants to say how glad we are that Bill is no longer on this earth.
As far as I’m concerned my brother was lower than the rats in my
barn.”407 Malcolm’s former stepdaughter, now an adult, who was raped at
the age of five, was ecstatic when she received news of the killing, saying
“[h]earing the Animal was dead is the happiest I’ve ever felt.”408 While
she knew that, as one of his victims, she was a suspect, she insisted that
she personally was not involved, saying, “[i]t was none of us. [But] I wish
it had been me who killed him.”409
This case is not different from others considered previously in this
Article, in which vigilantes take the law into their own hands when the
law shows itself unwilling to punish serious wrongdoing. But what happened next illustrates another dimension of vigilante action.
It was widely agreed that many neighbors knew who had done the
killing, and many more had information that would have helped investigators find the killer.410 Yet, no one came forward, and those who were
interviewed did not provide information.411 Police investigators questioned many of Malcolm’s former victims and relatives but received little
help from them or from neighbors.412 The police urged witnesses who had
seen white males of average height and build leaving the premises after
the shooting to come forward.413 Although a neighbor’s younger brother
had been killed by a pedophile in 1994, and despite the neighborhood
uproar over Malcolm moving there, that neighbor claimed he did not
know about Malcolm’s criminal past.414
402. Sullivan & Busfield, supra note 372.
407. John Kay & Mike Sullivan, ‘Shooting Was Best Thing for My Evil Brother;’ Exclusive Interview: Andy Malcolm, THE SUN (LONDON), Feb. 22, 2000, at 21.
408. Mike Sullivan, ‘I’d like to Buy Child-Sex Fiend’s Killers a Big Drink’: Exclusive, SUN
(LONDON), Feb. 21, 2000, at 9.
409. Id.
411. See Steve Boggan, No One Mourns and No One Talks: A Community Closes Ranks After a
Paedophile Is Shot Dead, INDEP., May 29, 2000, at 10.
412. Id.
414. Handley Brother Speaks, BRISTOL EVENING POST, Feb. 21, 2000, at 2.
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Three months after the murder, investigators were no closer to apprehending the killer or killers.415 It was clear that Malcolm’s murder was
a crime that the neighborhood did not want solved.
2.
Venice, California: Public Silence on Smashing of Drug Gathering
Place
Venice, a neighborhood in Los Angeles, California, was known for
its two-mile long promenade along the Pacific Ocean. The neighborhood
had long attracted an eclectic mix of people, including street performers,
tourists, and sun-worshipers drawn to the boardwalk. A tourist attraction
during the day, it drew a less respectable crowd at night. A series of
wooden pagodas with benches along the boardwalk provided tourists and
neighbors with a welcome place to sit out of the sun, but at night brought
local gang members who used the locations to deal drugs. 416
The neighborhood repeatedly appealed to police to deal with the
drug problem, or at least to remove the pagodas so that the drug dealing
would move to less public and prominent places, but their pleas had no
effect.417 One local resident finally took matters into his own hands,
ramming the structures with his pickup truck until they were destroyed.418
With the pagodas gone, the drug dealers moved away.419
Over the objection of residents, the city rebuilt seating and tables,
this time constructed in concrete.420 The newly installed gathering areas
were popular with tourists and the local merchants who sold to them but,
as expected, the drug dealers returned to them at night.421 As a local resident put it, “once the picnic tables went back in, it re-created the problem.”422 Although local community members regularly called the police
to report the drug dealing, the police rarely responded because, in their
view, there were bigger crime problems elsewhere.423
Fed up with the lack of police response, local residents decided to
again take matters into their own hands.424 One weekend in August, 1994,
a group of residents in ski masks arrived at the site and took sledgehammers to the new benches.425 By the time the sun rose on Monday morn415. See Boggan, supra note 411.
416. See Adrian Maher & Kathleen Kelleher, Destruction of Tables in Venice Draws Criticism:
Vandalism: Despite Charges of Vigilantism from Youths and Others, Many Residents Say the Action
Was Justified to Curb Noise and Violence, L.A. TIMES, Aug. 30, 1994, http://articles.latimes.com/199408-30/local/me-32826_1_venice-resident; Lisa Richardson, Breaking up the Party on the Boardwalk:
Venice: Hammer-Wielding Residents Allegedly Smash Picnic Tables They Say Are Used for Raucous
Late-Night Meeting Sites, L.A. TIMES, Aug. 29, 1994, http://articles.latimes.com/1994-08-29/local/me32582_1_picnic-tables.
417. Maher & Kelleher, supra note 416.
418. Richardson, supra note 416.
419. Id.
420. Id.
421. Id.
422. Id.
423. Maher & Kelleher, supra note 416.
425. Maher & Kelleher, supra note 416; Richardson, supra note 416.
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ing, all the tables had been destroyed, to the cheers of a large crowd of
onlookers.426 Organizers had informed other neighbors that the demolition was going to occur, so loud demolition noises would not prompt calls
to police by those unaware of their purpose.427 Ironically, one person had
called police to report the incident, but the police had ignored the call as
being of insufficient importance.428 Local drug dealers were unhappy with
the destruction and that same morning sent their people swarming the
local apartment buildings demanding to know who had destroyed their
hangout.429
The people who demolished the benches justified their actions by
the refusal of law enforcement to deal with the problem.430 As one of the
perpetrators described their sledgehammer escapade, “[We’ve] got a
bunch of nineteen-year-old kids that are running this street . . . . The fear
is unbelievable . . . . We have the silent approval of the whole community. People were cheering—we even had a woman take a few swings.”431
Another resident explained, “[s]ometimes you have to tear the house up
to get the rat out . . . . We have complained and complained and complained to the police and they will not stop here . . . . It was intolerable.”432 Others, less enthusiastic about the destruction, nevertheless conceded that “[t]he guys who did this may have some legitimate comcomplaints . . . .”433
Despite the fact that eighty to ninety people witnessed the demolition, and one of the perpetrators was interviewed by the press, investigators could find no one willing to help them with their inquiries.434 As one
investigator marveled, “[i]t is just amazing to me that there were three or
four people out there busting up tables and none of the residents saw anything.”435 Because no one in the neighborhood was willing to help, no
prosecution was ever brought.436
3.
Kevin McElroy: Protecting the Public Killers of the Local Intimidator
A resident of Skidmore, Missouri, Kevin McElroy was a local thief,
bully, and sexual predator.437 He rarely held a job but always had plenty
of money from stealing anything he could get a “fence” to buy.438 He was
427. See id.
428. See Maher & Kelleher, supra note 416.
429. See id.
430. See id.
431. Id.
432. Id.
433. Id.
434. See id.
435. Id.
436. Id.
437. See David Krajicek, Ken McElroy, CRIME LIBRARY 1–29, http://www.crimelibrary.com/
notorious_murders/classics/ken_mcelroy/index.html (last visited Nov. 5, 2014).
438. See id.
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an active livestock rustler and, as a result, for years Skidmore County
had the highest incidence of cattle rustling in the state.439
His sexual preferences were for young girls between the ages of
twelve and fifteen.440 Married three times, but never faithful, he attracted
one young girl after another, keeping them compliant first by attention
and support in this poor rural area, then by intimidation and abuse.441 He
fathered more than twenty children with different girls.442
If family or friends of the girl objected, he would respond with intimidation.443 In one instance, after hooking-up with a twelve-year-old
girl in eighth grade, she soon became pregnant and dropped out of
school.444 Sixteen days after her child was born, she went home to her
parents to escape McElroy’s regular beatings, but McElroy tracked her
down and brought her back at gunpoint, beat her, then returned to her
parents’ house, shot their dog, and burned their house to the ground.445
Most people were too intimidated to report McElroy to the police, and
even when they did little happened, perhaps because the police were
afraid of him too.446 When he was charged with an offense, he would arrange for one of his coon-hunting friends to offer a fabricated alibi and
would intimidate any witnesses.447 In one instance, when a neighbor complained of his trespassing, McElroy shot the man with a shotgun, wounding him.448 The neighbor insisted that charges be filed, but between the
shooting and the trial McElroy parked outside the man’s house to stare
at him on nearly one hundred occasions.449 Acquitted after the usual alibi
testimony, McElroy showed up at the complaining neighbor’s farm and
shot a rifle at him as he drove his tractor in the field.450
One episode finally brought things to a head. Some of McElroy’s
many children visited a local grocery store owned by Louis and Bo
Bowenkamp, and were accused of stealing.451 After an argument,
McElroy was refused further service and banned from the store.452 As
usual, McElroy took an aggressive response, taking up a staring vigil outside of the store and outside of the Bowenkamps’ home.453 Also as usual,
the police refused to do anything.454 When McElroy twice fired a shotgun
at his house, Bowenkamp insisted on filing a complaint, but nothing was
439. See id.
440. See id.
441. See id.
442. See id. (“He was in his mid-30s, had fathered nearly 10 children and already had two women,
Alice and Marcia, sharing his bedroom.”).
443. See id.
444. See id.
445. See id.
446. See id.
447. See id.
448. See id.
449. See id.
450. See id.
451. See id.
452. See id.
453. See id.
454. See id.
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[Vol. 2015
ever done about it.455 McElroy returned two nights later, firing again,
with the same nonaction by authorities.456
On July 8, 1980, McElroy confronted Bowenkamp outside his store
and shot him with a shotgun, hitting him in the neck.457 McElroy was arrested and charged.458 Free while awaiting trial, McElroy continued his
campaign of intimidation, including threatening a minister and a local
sheriff who could be witnesses against him.459
Despite his usual witnesses, who claimed they happened to be driving by just at the moment that McElroy shot in what they testified was
self-defense, McElroy was convicted of second-degree assault and sentenced to two years in prison, but released on bail pending appeal.460 A
hearing to consider revoking his bail was delayed several times.461 When
McElroy was heard ranting that he would kill the Bowenkamps, the
townspeople planned a meeting to discuss how to deal with the problem
and to arrange a watch to protect the Bowenkamps.462
McElroy heard about the meeting and showed up at a bar nearby.463
A group of the townspeople, hearing of his presence, went to the bar and
followed McElroy out when he left.464 By now a group of about forty-five
people had appeared.465 When McElroy was getting into his truck, a total
of six shots from multiple directions were fired at McElroy, killing him.466
Despite the number of witnesses to the killing in broad daylight, no
one was willing to provide information to investigators, aside from the
uncorroborated statements of McElroy’s latest wife, who was inside the
truck at the time of the shooting.467 A state investigation was followed by
an FBI investigation ordered by the U.S. Department of Justice.468 Nearly
one hundred interviews of local residents and apparent witnesses turned
up no one willing to provide information to investigators.469 The case remains unsolved.470
455.
456.
457.
458.
459.
460.
461.
462.
463.
464.
465.
466.
467.
468.
469.
470.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
See id.
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461
Manipulating the System to Compel the Justice It Seems Reluctant to
Impose
The classic vigilantes in the cases above are doing what we have
seen throughout Part II: taking the law into their own hands when they
see gross failures of justice. The new element here is the conduct of the
neighbors in protecting the classic vigilantes from prosecution. These
“shadow vigilantes,” as they might be called, are not going out into the
streets to break the law, as the classic vigilantes do. Their conduct, or
omission, however, is designed to subvert the law, if not break it. Their
motivation is likely the same as that of the classic vigilantes: the sense of
moral justification arising from the system’s willful failures. I put “shadow vigilantes” in quotes above because they are not technically “vigilantes” as I have defined and used the term earlier in this Article. Depending on the circumstances, the shadow vigilantes’ conduct might be
criminal or it might be only unethical. It shares a motivation with classic
vigilantism: to force the criminal justice system to impose the justice that
the system has up to that point failed to enact. The shadow vigilantes’ actions might or might not be morally justified (under Part II.B.’s rules),
but no doubt these people probably think they are justified.471 They likely
see themselves similarly to how civil disobedience protesters see themselves: they know that what they are doing is inconsistent with the law, in
spirit, if not in letter, but they see the violation as morally justified by the
law’s own immorality in its indifference to doing justice.
Shadow vigilantism is in fact more damaging than classic vigilantism
for several reasons. First, while less dramatic, it is more pervasive. Shadow vigilantism appeals not just to the unusual person or group willing to
be a classic vigilante by openly breaking the law in serious ways. Rather,
it appeals to the ordinary people who cannot bring themselves to such
explicit lawlessness, but who can bring themselves to undermine and
subvert, through noncooperation, lying, or other lower-level misconduct,
a system they see as immorally indifferent to serious wrongdoing. Consider all the neighbors in the Section A cases that refused to help authorities pursue the classic vigilantes. If those neighbors were sitting on a jury
for those vigilantes, would they be likely to vote to acquit? If they were
the grand jurors or prosecutor in the case, would they want to avoid
bringing charges? If they were voting on a proposal to change the rules
that led to the failure of justice, would they vote for the change and for a
politician who supported the change? It seems highly likely that they
would easily do all of the above. The fact that an entire neighborhood
can show its willingness to succumb to a shadow vigilante impulse shows
the potential sweep of the problem.
471. Diana Reese, Reissued Book Recalls the Time Law Failed Skidmore, Mo., WASH. POST BLOG
(July 10, 2012), http://www.washingtonpost.com/blogs/she-the-people/post/law-fails-skidmore-mo/2012
/07/10/gJQAV7L7aW_blog.html.
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Further, shadow vigilantism is more problematic than the classic
form because the criminal justice system cannot effectively deter it in the
way it can classic vigilantism. The failure to report a crime or to assist investigators often is not considered a crime in the United States472 and
other low-level shadow vigilantism misconduct, even if it is criminal, cannot be effectively prosecuted. More on the specific kinds of shadow vigilantism is discussed below.
But shadow vigilantism is also more damaging because it operates in
the shadows. The classic vigilantes, by operating openly, serve as a public
protest against the system’s failures of justice – a call to the system to
correct itself. Shadow vigilantism is generally unseen. Jury nullification,
improper exercise of discretion in charging, sentencing and other criminal justice decisions, and support in the voting booth for unjust punishment policies go unseen.
Further, the level of shadow vigilante action in any given case is unpredictable, dependent as it is on a wide variety of factors, such as publicity and public reaction. That introduces arbitrariness and disparity
among cases that can only contribute in the long run to the system’s reputation as being less predictable, more arbitrary, more unreliable, and
thus less just. In other words, shadow vigilantism only serves to exacerbate the system’s moral credibility problem that triggered it.
Thus, as Section C below explains, the system’s insensitivity to the
importance of doing justice invites a downward spiral. The system’s poor
reputation prompts shadow vigilantism, which further degrades the system’s consistency and predictability, which further undermines its reputation, making it that much easier for people to be provoked to undermine and subvert it.
Consider the many ways in which shadow vigilantism can manifest
itself.
1.
Refusing to Report an Offense, Assist an Investigation, or Bring a
Prosecution
One form of shadow vigilantism has already been illustrated: the refusal to report offenses, assist investigators, or to testify in court. The
three Section A cases above show such lack of cooperation in the prosecution of classic vigilantes. But the same refusal to cooperate may be
seen in cases beyond those of protecting vigilantes. Consider, for example, cases in which the offender is seen by the community as using defensive force in trying to protect himself or the neighborhood. The shadow
472. Almost by definition, the shadow vigilante cannot meet the rules for the moral vigilante as
laid out in Part I.B.: they typically do not give prior warnings, as rule 7 requires; typically do not report
afterwards what they have done and why, as rule 8 requires; and also commonly are each acting alone,
as rule 3 forbids. However, a group might be formed to coordinate activities in ways that might come
closer to meeting the rules. An organization might publish guidelines and advice about what shadow
vigilante actions people should take and why, and to report what is done anonymously and why. See
supra Part II.B.
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vigilante may believe that authorities ought to be providing the protection and, if they fail, at the very least, the law should do everything to
help the victims who are forced to defend themselves.473
Empirical studies show strong support among laypersons for the use
of defensive force against aggressors and for the excuse of defenders who
make mistakes in using defensive force.474 The community views on this
point are dramatically more liberal than the legal rules. For example, a
summary of studies found that
In all of these studies, the community judges that these [defensive
force] justifications are more compelling than the legal codes are
willing to grant. Respondents frequently assign no liability in cases
to which the code attaches liability. Even when respondents assign
liability, they typically assign considerably less punishment than
would be suggested by codes.475
The same phenomenon is seen in local prosecutors’ charging decisions.
Recall, for example, the recent case of George Zimmerman’s killing of
unarmed teenager Trayvon Martin. Zimmerman, the neighborhood
watch coordinator, suspected unfamiliar Martin of being a trespasser in
the gated community.476 He followed Martin and claimed he shot the unarmed Martin in self-defense.477 The local authorities filed no charges until national press focusing on the racial aspect of the case compelled a
prosecution.478
The same dynamic was probably at work in the famous case of the
New York “subway vigilante,” Bernhard Goetz, who shot four young
African-American men after he claimed they sought to rob him.479 After
473. It can be a crime to lie to police or to refuse to answer questions before a grand jury. See,
e.g., Brown v. United States, 359 U.S. 41, 50–51 (1959) (finding contempt where a witness refused to
answer before a grand jury on grounds of self-incrimination privilege despite being granted immunity).
But see FED. R. CRIM. P. 42 (Criminal Contempt); 18 PA. CONS. STAT. § 4906 (False Reports to Law
Enforcement Authorities); Harris v. United States, 382 U.S. 162, 164 (1965) (identifying a similar scenario where criminal contempt was not appropriate). But shadow vigilantes can usually avoid committing such offenses simply by saying nothing to investigators in the first place and never drawing attention to themselves that might put them before a grand jury.
474. See ROBINSON, INTUITIONS OF JUSTICE, supra note 2, at 280.
475. For anecdotal instances of refusals to press charges by prosecutors or acquittals by juries, see
Joe Palazzolo & Rob Barry, More Killings Called Self-Defense, WALL ST. J., Apr. 2, 2012,
http://online.wsj.com/article/SB10001424052702303404704577311873214574462.html. The journalists
cite two cases in Florida: a 2009 shooting in which a robber broke into a club for recovering alcoholics
and threatened members at gunpoint; a man present in the club shot the robber with a concealed
weapon, but was ultimately not charged, as local prosecutors claimed he had acted in self-defense. In
another case in Florida, a judge dismissed a murder charge against an individual who fatally stabbed a
suspected burglar who had stolen his car radio, because the individual had attempted to swing a bag of
stolen radios at him. Id.
476. Greg Henderson & Scott Neuman, Jury Acquits Zimmerman of All Charges, NPR (July 13,
2013, 7:45 AM), http://www.npr.org/blogs/thetwo-way/2013/07/13/201744637/jury-in-zimmerman-trialenters-second-day-of-deliberation.
477. Greg Botelho, What Happened the Night Trayvon Martin Died, CNN (May 23, 2012, 10:48
AM), http://www.cnn.com/2012/05/18/justice/florida-teen-shooting-details.
478. See id.; Lizette Alvarez & Carey Buckley, Zimmerman is Acquitted in Trayvon Martin Killing, N.Y. TIMES, July 13, 2013, http://www.nytimes.com/2013/07/14/us/george-zimmerman-verdicttrayvon-martin.html?pagewanted=all&_r=0.
479. See People v. Goetz, 497 N.E.2d 41 (N.Y. 1986).
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a first round of shots that scattered the four, Goetz approached Darrell
Cabey, who was grasping a seat by the conductor’s cab, and said, “You
seem to be doing alright. Here’s another.”480 He then shot Cabey, severing his spine.481 When first presented the case, the grand jury refused to
indict.482
2.
Jury Nullification to Counter the Law’s Apparent Indifference to
Punishing Unlawful Aggressors
The same shadow vigilantism operates later in the system as well,
when cases go to trial. When Zimmerman was finally charged with the
killing of Martin, an all-woman jury acquitted him of all homicide
charges.483 In the Goetz case, publicity centering on the racial component
of the case eventually brought a resubmission to the grand jury and a
trial.484 While it seems difficult to see how a jury could conclude that
Goetz could “reasonably believe” shooting Cabey was necessary to protect himself, as the self-defense statute required, the jury acquitted Goetz
of all assault charges.485 The law has its rules, but shadow vigilantes with
the power of jury nullification have their own.
In a Minot, North Dakota, case, four men came to Jeremiah
Tallman’s home to complain of a theft they claimed occurred earlier in
the day.486 They exchanged angry words with Tallman while standing in
the entryway.487 They were told to leave, and did when Tallman cocked
the slide of his gun.488 As they walked away, one pounded on the trailer
and another broke a window.489 Tallman then shot one of the men in the
back several times, killing him.490 He was acquitted of all homicide and
assault charges.491
480. Id. at 43; Jack Strickland, Bernhard Goetz: “You Seem To Be Doing Alright, Here’s
Another,” YOUTUBE.COM (July 3, 2014), https://www.youtube.com/watch?v=xXtEle8JM2w.
481. Goetz, 497 N.E.2d at 43.
482. Grand Jury Refuses to Indict Goetz for Attempted Murder, GADSDEN TIMES, Jan. 26, 1985, at
A8.
483. See Henderson & Neuman, supra note 476.
484. See Goetz, 497 N.E.2d at 45.
485. See N.Y. PENAL LAW § 35.15; Jon Beeman & Evan Lange, The Bernhard Goetz Trial: A
Chronology, UNIV. MO. KAN. CITY LAW SCH. http://law2.umkc.edu/faculty/projects/ftrials/goetz/
goetzchrono.html (last visited Nov. 5, 2014).
486. Dave Caldwell, Jury Decides Minot Man’s Actions Were Self-Defense, MINOT DAILY NEWS,
May 25, 2011, http://www.minotdailynews.com/page/content.detail/id/555056/Jury-decides-Minot-mans-actions-were-self-defense.html?nav=5010.
487. Id.
488. Id.
489. Id.
490. Minot Murder Suspect Jeremiah Tallman Pleads Not Guilty, BISMARCK TRIBUNE, Aug. 26,
2010,
http://bismarcktribune.com/news/state-and-regional/minot-murder-suspect-jeremiah-tallmanpleads-not-guilty/article_a45f7f0c-b11f-11df-bb5d-001cc4c03286.html.
491. PAUL H. ROBINSON & JOHN M. DARLEY, JUSTICE, LIABILITY & BLAME: COMMUNITY
VIEWS AND THE CRIMINAL LAW 80 (1995) (“Our subjects may believe that the criminal justice system
is not likely to apprehend criminals, convict them when it apprehends them, or justly punish them
when it convicts them. Our subjects may also believe that the criminal justice system is failing in its
role of protecting citizens. Our discrepant results may stem from a general belief that when the criminal justice system does a poor job in punishing offenders, it is appropriate for individual citizens to do
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465
According to one study, if self-defense is raised at trial, it succeeds
much more often than any other kind of defense.492 The survey respondents, consisting of judges, prosecutors, and defense attorneys, estimated
that the defense succeeded seventy-six percent, forty-seven percent, and
forty-six percent of the time, respectively.493
The same dynamic can apply to not just defensive force cases but also to cases in which the police are using aggressive force. Recall the 1991
case in which the police stopped an under-the-influence Rodney King after a long car chase and seriously beat him to subdue him.494 The gruesome and excessive beating was caught on videotape, yet the Ventura
County jury acquitted the officers.495 Some of the jurors may well have
thought that the police conduct was in violation of existing law. These jurors may have felt morally justified in acquitting the officers because they
lacked confidence that existing law took proper account of the need for
the use of force or gave sufficient deference to the ease of error in such
situations.496
According to a Cato Institute study, prosecution, imprisonment, and
other sanctions of police officers occur at a much lower rate than for civilians facing similar charges.497 In some cases, according to the Cato data, officers were acquitted even in the face of clear evidence, such as multiple witnesses or videotape.498 For example, in September 2009, a
Spokane, Washington, jury acquitted an officer of assault for kicking a
suspect in the face, though other officers present confirmed that he had
done so.499 In another Washington State incident in 2010, an officer was
acquitted after he was videotaped striking a fifteen-year-old girl who,
more in defense of both self and property as well as in law enforcement. The more ineffective the system is seen to be, the more people may be willling to let victims take matters into their own hands. . . .
The strength of the differences between community standards and legal codes that we found would
indicate, at a minimum, that large segments of the population are deeply dissatisfied with the criminal
justice system. These observed discrepancies may illustrate one of the “hidden costs” to policies that
fail to provide adequately funded police forces, or to court systems that fail to punish blameworthy
offenders.”).
492. Neil P. Cohen et al., The Prevalence and Use of Criminal Defenses: A Preliminary Study, 60
TENN. L. REV. 957, 973 tbl.2 (1993).
493. Id. at 975 tbl.4.
494. Emily Langer, Rodney King Dies; Victim of Police L.A. Beating Was 47, WASH. POST, June
17, 2012, http://www.washingtonpost.com/national/rodney-king-dies-victim-of-police-la-beating-was47/2012/06/17/gJQAVSh2jV_story.html.
495. See, e.g., Akhil Reed Amar & Jonathan L. Marcus, Double Jeopardy Law After Rodney
King, 95 COLUM. L. REV. 1, 2 (1995). Again, national media attention driven by public unrest in some
minority neighborhoods compelled a later trial in federal court in which two defendants were convicted of violating King’s civil rights. Id.
496. The empirical studies similarly suggest great leniency toward citizens exercising law enforcement authority, even when they make mistakes in the use of force. ROBINSON, INTUITIONS OF
JUSTICE, supra note 2, at 293–99.
497. See CATO INSTITUTE, NATIONAL POLICE MISCONDUCT REPORTING PROJECT, 2010 ANNUAL
REPORT, available at http://www.policemisconduct.net/statistics/2010-annual-report/.
498. See David Packman, The Problem with Prosecuting Police in Washington State, CATO
INSTITUTE (FEB. 27, 2011, 12:55 AM), http://www.policemisconduct.net/the-problem-with-prosecutingpolice-in-washington-state/.
499. Thomas Clouse, Jury Acquits Spokane Officer, SPOKESMAN-REVIEW, Sept. 10, 2009, http://
www.spokesman.com/stories/2009/sep/10/jury-finds-officer-not-guilty-assault/.
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when told to remove her basketball shoes, kicked toward a fellow deputy.500 The first trial resulted in a hung jury, while the second resulted in an
acquittal.501
3.
Neighborhood Watch and Beyond
The shadow vigilante attitude also shows itself in the dramatic rise
in neighborhood watch and private security organizations, as noted in
Part IV.D. Thirty-five years ago there were more police than private security, while today there is twice as much spending on private law enforcement than public.502 It is a literal, and usually lawful, form of the
neighborhood taking on the role of the government, which has, in the
community’s view, proven itself inadequate to the task.503 But we know
from the Maccabees’ case study, as well as the Zimmerman case, that
such citizen involvement in policing can easily end in conflict and violence, or in simply displacing crime from one neighborhood to another.
Some neighborhoods have gone beyond watch groups. A recent development is the “Glock Block,” where neighborhoods in Oregon, Texas,
and Arizona advertise “We Don’t Call the Police.”504 The threat itself
may not be illegal, but it certainly signals a willingness to go far beyond
the rules of lawful defensive conduct.
This kind of community action, at least of the tamer neighborhood
watch variety, is consistent with the commonly-applauded trend in criminal justice toward greater community participation. At the trial and punishment phase, restorative justice has become extremely popular and has
a broad political spectrum of supporters. Even community involvement
in prosecution decisions, and what has been called “community prosecution” has gained support.505 Community involvement in most aspects of
criminal justice is on the rise, and the underlying shadow vigilante impulse will have an increasing number of ways to express itself.
500. Scott Sunde, No Third Trial for Ex-Deputy Accused of Jail Assault, SEATTLE PI (July 8,
2010), http://www.seattlepi.com/local/article/No-third-trial-for-ex-deputy-accused-of-jail-886478.php.
501. Id.
502. See supra text accompanying note 364.
503. It seems unlikely that watch groups are formed in neighborhoods content with their law enforcement situation. See, e.g., ROBINSON, INTUITIONS OF JUSTICE, supra note 2, at 155.
504. Citizens Band Together to Form “Glock Block” Saying “We Don’t Call the Police,”
MR.CONSERVATIVE.COM (June 18, 2013, 8:25 PM), http://www.mrconservative.com/2013/06/19406citizens-band-together-to-form-glock-block-saying-we-don’t-call-the-police/; Anna Sanders, Welcome
to the ‘Glock Block’: Vigilante Neighbors in Oregon Town Say They Are No Longer Calling the Police
and Have Armed Themselves Instead, MAILONLINE.COM (June 17, 2013, 5:54 PM), http://www.
dailymail.co.uk/news/article-2343491/Welcome-Glock-Block-Vigilante-neighbors-Oregon-town-saylonger-calling-police-armed-instead.html.
505. Nicholas W. Klitzing, Fixing the Unfixable: Community Prosecution as a Problem-Solving
Strategy to Reduce Crime and Restore Order in East St. Louis, 32 ST. LOUIS U. PUB. L. REV. 157, 158
(2012).
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Morally Justifying Police “Testilying”
Another form of shadow vigilantism is police officers morally justifying their lying in court to compensate for what they see as improper
rules that regularly lead to failures of justice—complex rules that have
“metastasized into a dizzying array of formalistic doctrines and subdoctrines.”506 Even police officials concede that police lying in court, especially to justify improper searches, is not uncommon.507 It has earned its
own label, “testilying.” The term was coined by New York City police officers, apparently to help them justify in their own minds why it was different from normal lying under oath—even if not legal, it was morally
justified.508 “When an officer is deceptive in court, the rationale goes, he
is ‘not quite lying’ but ‘not quite testifying truthfully and completely’ either. Testilying is seen as a middle ground between pure honesty and
pure dishonesty.”509
Most famous among the examinations of police perjury is the 1994
Mollen Commission Report on the New York Police Department: “Police perjury and falsification is a serious problem facing the Department
and the criminal justice system.”510 Such perjury was “probably the most
common form of police corruption . . . particularly in connection with arrests for possession of narcotics and guns.”511 An empirical study by
Orfield in Chicago concluded that “[v]irtually all the officers admit that
the police commit perjury, if infrequently, at suppression hearings.”512
The study claimed that up to seventy-six percent of the officers surveyed
had “shaded” facts in order to establish probable cause.513
The Mollen Commission Report spoke to the reasons for the officers’ willingness to lie: “In their view, regardless of the legality of the arrest, the defendant is in fact guilty and ought to be arrested.”514 It explained that the officers were frustrated with the legal rules that
506. George C. Thomas III, Lost in the Fog of Miranda, 64 HASTINGS L.J. 1501, 1501 (2013).
507. Michelle Alexander, Op-Ed., Why Police Lie Under Oath, N.Y. TIMES SUNDAY REV. (Feb.
2, 2013), http://www.nytimes.com/2013/02/03/opinion/sunday/why-police-officers-lie-under-oath.html?
pagewanted=all&_r=0 (quoting Peter Keane, former San Francisco Police commissioner: “[p]olice
officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-sosecret secrets of the criminal justice system is undercover narcotics officers intentionally lying under
oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is
the routine way of doing business in courtrooms everywhere in America”).
508. Larry Cunningham, Taking on Testilying: The Prosecutor’s Response to In-Court Police Deception, 18 CRIM. JUST. ETHICS 26, 26 (1999).
509. Id.
510. COMMISSION REPORT, THE CITY OF NEW YORK COMM’N TO INVESTIGATE ALLEGATIONS
OF POLICE CORRUPTION AND THE ANTI-CORRUPTION PROCEDURES OF THE POLICE DEP’T 36 (1994)
[hereinafter COMMISSION REPORT], available at http://www.parc.info/client_files/special%20Reports/
4%20-%20Mollen%20Commission%20-%20NYPD.pdf.
511. Id.
512. Myron W. Orfield, Jr., The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U. CHI. L. REV. 1016, 1051 (1987).
513. Jon Loevy, Truth or Consequences: Police “Testilying,” 36 Litig. 13, 14 (2010) (citing Myron
W. Orfield, Jr., The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U. CHI. L. REV. 1016 (1987)).
514. COMMISSION REPORT, supra note 510, at 38.
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protected criminals from search and seizure, because the rules were perceived as “unrealistic rules of law.”515 Officers also expressed frustration
in their “inability to stem the crime in their precinct through legal
means.”516 They have a strong belief that perjury was acceptable because
it was necessary to stem the tide of crime, and such was “‘doing God’s
work’—doing whatever it takes to get a suspected criminal off the
streets.”517
Other writers have made the same point: “Police view perjury as a
necessary means to achieve the ends of justice. Constitutional rules—
particularly the Exclusionary Rule—are viewed as technicalities that ‘let
the criminal . . . go free because the constable has blundered.’”518 One
study found that testilying began soon after cases were dismissed under
the 1961 exclusionary rule holding in Mapp v. Ohio.519 To police, “there is
a deep-seated disregard for what they consider to be silly little laws made
by a silly little Supreme Court in a backroom far removed from the dangerous streets they are trying to bring into order.”520
Presumably judges, like others in the system, are well aware of the
“testilying.” Yet some may share the shadow vigilante sympathy, and
thus, while no doubt unhappy about perjury in their court, play along
with the game and accept the testimony as sufficient to justify the search
or the arrest. As Alan Dershowitz reports, when officers offer perjured
testimony, the judge “shakes his head in knowing frustration, but accepts
the officers’ account as credible.”521
This is a sad state of affairs. But, in some ways it is a predictable development as the collection of outrageous results from the law’s “technicalities” accumulate (as in Eyler, Ignatow, Healy, and other cases in Part
IV.). As the law increasingly loses moral credibility with the community,
it becomes increasingly easier for shadow vigilantes to justify the subversion of what they see as an immoral system. It is probably no coincidence
that “testilying” is most frequently associated with satisfying the technicalities of search and seizure law. The same officer who feels comfortable
lying about which side of a house’s threshold he was on when he saw
drugs in plain sight might think it abhorrent to lie about a matter related
to the actual guilt or innocence of the defendant.
515. Id.
516. Id.
517. WAYNE PETHRICK ET AL., FORENSIC CRIMINOLOGY 118 (2010).
518. Cunningham, supra note 508, at 29.
519. Case Comment, Effect of Mapp v. Ohio on Police Search and Seizure Procedures in Narcotics
Cases, 4 COLUM. J.L. & SOC. PROBS. 87, 94–95 (1968).
520. Nick Malinowski, Testilying: Cops Are Liars Who Get Away With Perjury, VICE (Feb. 3,
2013), www.vice.com/read/testilying-cops-are-liars-who-get-away-with-perjury.
521. Alan Dershowitz, Op-Ed., A Police Badge is Not a License to Commit Perjury, EVENING
TRIB., Apr. 4, 1991, at B11.
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Prosecutorial Overcharging
Another instance of shadow vigilantism, in which participants feel
morally justified in subverting the system in order to do justice, is the
now common practice of prosecutorial overcharging. The overcharging is
of two sorts: vertical overcharging, in which the prosecutor charges offenses for which he has insufficient proof to convict, and horizontal overcharging, in which he charges a series of overlapping offenses arising
from the same criminal act.522 In the latter type, prosecutors charge every
offense for which a defendant might theoretically satisfy the offense definition, no matter how overlapping the offenses may be. Thus, a prosecutor might take a standard rape case—using force to compel intercourse—
and add on “assault, kidnapping, gross sexual imposition, etc.”523 This is
made possible because most U.S. criminal codes, even those recodified in
the Model Penal Code wave, now have a vast collection of overlapping
offenses,524 as legislatures have been constantly adding new offenses,
sometimes making the code seven or eight times longer than its original
Model-Penal-Code-based form, but without substantially expanding its
coverage.525
522. Kyle Graham, Overcharging, 11 OHIO ST. J. CRIM. L. 701, 704 (2014).
523. Anon. 2.71828, Comment to “Overcharging,” SENTENCING LAW AND POLICY (Mar. 19, 2013,
10:45 PM), http://sentencing.typepad.com/sentencing_law_and_policy/2013/03/overcharging.html.
524. For example, in the Illinois criminal code:
Chapter 720 includes narrow, specific offenses in addition to a broader prohibition against such
conduct generally. For example, although one provision in current Chapter 720 covers theft generally, a number of other provisions in Chapter 720 prohibit the same underlying conduct — theft
by taking (or its attempt)—in the context of specific circumstances or forms of property. The
same situation exists for assault offenses and property damage offenses. Similarly, in addition to
its general perjury offense, current Illinois law contains numerous offenses criminalizing false
statements made under oath or affirmation about particular matters, in particular documents, and
in particular proceedings.
MICHAEL T CAHILL & PAUL H. Robinson, FINAL REPORT OF THE ILLINOIS CRIMINAL CODE
REWRITE AND REFORM COMMISSION xli (2003) [hereinafter CAHILL & ROBINSON, FINAL REPORT]
(emphasis in original) (footnotes omitted). Kirk Dillard, a Republican state senator from Hinsdale,
and a member of a later commission, acknowledged that lawmakers sometimes push for redundant
measures in response to crimes within their districts. Dillard states, “When something occurs in any of
the members of the General Assembly’s district in a criminal matter . . . the legislator always wants to
add a new [law] for a lot of reasons, including public-relation’s purposes . . . . [W]e all add to the criminal code. And it turns into a hodge-podge.” John Chase, Panel to Take on Crime Law Maze, CHI.
TRIB., Dec. 14, 2004, http://articles.chicagotribune.com/2004-12-14/news/0412140287_1_laws-criminalcode-divito.
525. See CAHILL & ROBINSON, FINAL REPORT, supra note 524, at xix (“The sheer verbiage of
current law is one indication of its failure to consolidate similar offenses . . . . Overall, the Proposed
Code’s Special Part uses only 14.9 percent—less than 1/6—of the words in the current code’s Special
Part, and only 6.7 percent—about 1/15—of the current Special Part plus other, non-criminal code statutory felonies.”); PAUL H. Robinson, FINAL REPORT OF THE KENTUCKY PENAL CODE REVISION
PROJECT xxix (2003) (“[N]early three decades of piecemeal modification of the Code have led to the
addition of hundreds of new offenses, many of which cover the same conduct as previous offenses.”);
see also Paul H. Robinson & Michael T. Cahill, The Accelerating Degradation of American Criminal
Codes, 56 HASTINGS L.J. 633, 635–636 (2005) [hereinafter Robinson & Cahill, Accelerating Degradation] (“One might expect that over time, as more loopholes or omissions in a code are eliminated,
there would be a reduced need to alter or expand that code, but historical trends demonstrate that the
opposite is true . . . the Illinois Code underwent nearly twice as many amendments in its second twenty
years of existence than in its first twenty years.”).
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The forest of overlapping offenses exists in large part because prosecutors have politically promoted them. They do so by supporting a constant stream of new offenses that typically are just added on top of the
old, and by opposing criminal code reforms that would streamline codes
and eliminate unnecessary overlaps. For example, the political opposition of prosecutors effectively blocked attempts at a new criminal law
codification in Illinois in 2003.526 One of the primary aims of this new codification was the consolidation of overlapping offenses.527 In turn, Illinois
prosecutors sponsored a new reform commission that would keep the redundancies in the current code.528
Prosecutors’ moral justification for such excessive charging might
rest on any or all of several different claims, analogous to the sorts of
claims heard from police to justify their testilying. First, the criminal justice process has so many barriers to an offender getting the liability and
punishment he deserves that such excess is needed just to end up with
some punishment that approximates what is really deserved.529 Further,
to some it may make sense to try to get more liability and punishment
than an offender deserves for the case at hand because, given the gross
ineffectiveness of the system, the offense at hand is probably just the tip
of the iceberg of the offenses he has actually committed.530
Finally, even if the overcharging generates liability that is undeserved for both present and unpunished past offenses, it is not something
526. Joseph Birkett, the most vocal prosecutor opposing the Criminal Code Rewrite and Reform
Commission (“CCRRC”) work, contended that “many of the special provisions and enhanced penalties are needed.” John Patterson, Are We Too Tough on Crime? Politicians’ Fear of Appearing Soft
Creates Avalanche of Laws, CHI. DAILY HERALD, Apr. 1, 2001, available at 2001 WLNR 12161363. A
Republican member of the Illinois House of Representatives and a member of the CLEAR commission (the prosecutor-sponsored successor to the original CCRRC), James B. Durkin, has acknowledged that prosecutors are hesitant to change. See Rep. James B. Durkin, Commentary, Court Reform,
CHI. TRIB., June 27, 2000, at 12, available at 2000 WLNR 8231128. Gino DiVito, a former Illinois appellate judge who co-chaired the CLEAR commission, found that the code’s illogic stems from laws
passed to address a specific crime or a constituent complaint, without examining how the new law fits
within the overall state code. “[T]he code reform project had barely gotten off the ground when prosecutors expressed their opposition and were unwilling to devote manpower or resources to assist in the
project, even though their participation would have assured them a voice within the decision-making
group.” Robinson & Cahill, Accelerating Degradation, supra note 525, at 649.
527. The Commission’s Report explained that
[T]he drafters have aimed to consolidate offenses. Perhaps inevitably, four decades of piecemeal
modification of the 1961 Code have led to the addition of hundreds of new offenses, many of
which cover the same conduct as previous offenses or appear in various other chapters of the
Illinois Compiled Statutes rather than in the criminal code.
CAHILL & ROBINSON, FINAL REPORT, supra note 524, at v–vi.
528. The 1100-page bill emanating from the Criminal Law Edit, Alignment and Reform
(“CLEAR”) Commission, inter alia, declined to recommend narrowing the number of circumstances
that can activate the charge of aggravated battery. They also declined to eliminate anachronistic offenses such as adultery and fornication. The last successful prosecution for fornication occurred in
1913, while the last charge of adultery brought in criminal court was in the early 1960s. Mike Ramsey,
Panel Assaults State Criminal Code, COPLEY NEWS SERV., Dec. 29, 2006.
529. Graham, supra at note 522, at 713–16.
530. See, e.g., Gerald Leonard & Christine Dieter, Punishment Without Conviction: Controlling
the Use of Unconvicted Conduct in Federal Sentencing, 17 BERKLEY J. CRIM. L. 260 (2012); Al Capone
Was Sent to Prison, But Still Beat the Courts: A 1931 Editorial on His Conviction for Tax Evasion, NEW
REPUBLIC, January 17, 2014, available at http://www.newrepublic.com/article/116246/al-capone-1931prison-conviction-tax-evasion.
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that ought to be a concern to prosecutors because the criminal justice
system is no longer about justice. It is simply a system of mutual combat
between defense counsel and prosecutors, with winners and losers, the
goal of which is always to win and never to lose. Just as defense counsel
see their job as always getting the least punishment possible for their
guilty clients, the prosecutors, in a symmetrical fashion, should see their
job as getting as much punishment as they can for guilty defendants.531
To those unfamiliar with the system, strategic overcharging might
seem too unethical to be done openly. But the increasing game-like features of the system have dulled participants’ sensibilities. Indeed, one
need only look at similar manipulative conduct by esteemed federal
judges before the Sentencing Reform Act of 1984 stopped the practice.
Existing federal law at the time required that all offenses be eligible for
release by the U.S. Parole Commission immediately upon arrival at prison, but federal judges were authorized by statute to delay eligibility until
an offender had served one-third of his sentence.532 But judges who bridled at this early release could, and did, short-circuit the system by simply determining the sentence they really wanted, then tripling it.533 Thus,
the offender would become eligible for release only after serving the full
term the judge thought appropriate. Prosecutors may be making similar
sorts of strategic manipulations when they overcharge.534
6.
Voting for Disproportionate Criminal Penalties
The impulse to subvert or manipulate a system that is thought to
have lost sight of the importance of doing justice manifests itself in the
many ways described above. It is also seen in an even larger form:
providing popular support for criminal justice reforms that would force
justice from a sometimes reluctant system. Unfortunately, these sorts of
jury-rigged attempts can produce their own problems and complications.
Consider, for example, the public dissatisfaction with the kind of
improperly lenient sentencing illustrated in Part IV.A, such as the fine
and community service for a shopkeeper who shot the customer in the
back after wrongly accusing her of shoplifting, and a fine for the men
531. Richard A. Oppel Jr., Sentencing Shift Gives New Leverage to Prosecutors, N.Y. TIMES, Sept.
25,
2011,
http://www.nytimes.com/2011/09/26/us/tough-sentences-help-prosecutors-push-for-pleabargains.html?pagewanted=all&_r=0.
532. U.S. PAROLE COMM’N, U.S. PAROLE COMMISSION RULES AND PROCEDURES MANUAL 10
(2010), available at http://www.justice.gov/uspc/rules_procedures/uspc-manual111507.pdf.
533. S. REP. NO. 98-225, at 46–47 (1983) (“Sentencing judges, trying to anticipate what the parole
commission will do, undoubtedly are tempted to sentence a defendant on the basis of when they believe the parole commission will release him . . . in doing so, some judges deliberately impose sentences above the parole guidelines, leaving the parole commission to set the presumptive release date . . .
other judges impose sentences consistent with or below the guidelines in order to retain control over
the release date.”).
534. It was in part this judicial manipulative practice that contributed to the enactment of the
“truth-in-sentencing” provisions of the Sentencing Reform Act of 1984. 18 U.S.C. § 3551. People had
become increasingly skeptical of the sentences that were publicly imposed because they always ended
in early release. The new Act required that an offender serve at least eighty-five percent of the sentence imposed – an attempt to earn back some credibility for the system. Id.
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who hunted down their victim after a bar confrontation and beat him to
death with a baseball bat.535
Dissatisfaction with unduly lenient sentencing helped nurture the
mandatory minimum movement. It took hold during the 1960s, when
drug and crime rates were rising,536 yet sentencing discretion remained
unrestrained.537 Once begun, it took on substantial momentum. For example, from 1991 to 2011, the number of the mandatory minimum penalties in the federal code nearly doubled.538 More than two-thirds of the
states now have mandatory minimums for drug offenses.539 “[M]ore than
eighty percent of the increase in prison population between 1985 and
1995 was due to drug convictions that triggered statutory mandatory minimum sentences.”540
The problem is that the shift to mandatory minimums essentially
guarantees the regular and predictable imposition of sentences that are
unjust, some grossly so. For example, one recent study of laypersons’
shared intentions of justice showed the dramatic conflict between the
law’s application in real cases and the average person’s judgments about
those cases.541 In one “three strikes” case, the subjects gave 3.1 years; in
reality, the court was required to give life imprisonment.542 In a cocaine
case, subjects gave 4.2 years, while the court was obliged to give life
without parole.543 In a marijuana case, the subjects gave 1.9 years, while
the court was compelled to give eight years.544 The unfortunate irony here
is that even the lay public—who elected the politicians who put the sentencing rules in place—sees these cases as grossly unjust.545
Everyone—offenders and public alike—would have been better off
if this sentencing war had never begun, if sentencing judges had restrained themselves from giving sentences that seriously conflicted with
community notions of justice, or if the system had restrained the lenientsentencing judges in more thoughtful ways, as with sentencing guidelines.
To be fair to the judges of that period, some of the improperly lenient sentencing was a product of theories of rehabilitation or other nondesert goals that were influential at the time. The sentencing policy landscape has changed. In the only amendment to the Model Penal Code
535. See supra notes 189–206 and accompanying text.
536. Kieran Riley, Trial By Legislature: Why Statutory Mandatory Minimum Sentences Violate the
Separation of Powers Doctrine, 19 B.U. PUB. INT. L.J. 285, 289–90 (2010).
537. Id. at 292–93.
538. Press Release, Senator Patrick Leahy, Bipartisan Legislation to Give Judges More Flexibility
for Fed. Sentences Introduced (Mar. 20, 2013), available at http://www.leahy.senate.gov/press/
bipartisan-legislation-to-give-judges-more-flexibility-for-federal-sentences-introduced.
539. Ellen Perlman, Terms of Imprisonment, GOVERNING (Apr. 2000), http://www.governing.
com/topics/public-justice-safety/Terms-Imprisonment.html.
540. Riley, supra note 536, at 308.
541. Josh Bowers & Paul H. Robinson, Perceptions of Fairness and Justice: The Shared Aims and
Occasional Conflicts of Legitimacy and Moral Credibility, 47 WAKE FOREST L. REV. 211, 219 (2012).
542. Paul H. Robinson et al., The Disutility of Injustice, 85 N.Y.U. L. REV. 1940, 1972 (2010).
543. Id.
544. Id.
545. For a discussion of how this conflict could have come about in a democratic society, see id. at
1979–94.
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since its enactment in 1962, the American Law Institute in 2007 dramatically altered the sentencing purposes provision of the Model Code to set
desert as the dominant purpose, which can never be violated.546 That new
clarity of purpose, together with the use of carefully constructed sentencing guidelines, can avoid the problem of improperly lenient sentences
and thereby eliminate the need for mandatory minimum sentences.
The problem is, however, that we now have mandatory minimums
and, as unnecessary as they may be, getting rid of them will not be easy.
We will for some time be paying for past sins of doctrines that produced
predictable failures of justice. At very least, we can stop making things
worse and begin to repair the system’s moral credibility by having the
system publicly and persuasively commit itself to doing justice and forsaking trading it away unnecessarily for minor benefits.
Some people may argue that the outrageous justice-failures illustrated in Part IV do not happen frequently enough to have a significant
effect on public perceptions. But this misunderstands the dynamic at
work. First, in many instances, failures of justice do not occur specifically
because shadow vigilantes are subverting the system. For example, the
rampant “testilying” by police, with the common acquiescence of judges,
is aimed at and presumably successful in avoiding failures of justice. This
is especially true in serious cases where the failure would be spectacular,
since it is these cases in particular where the shadow vigilante impulse
will be at its greatest. Interestingly, then, it is shadow vigilantism that in
some ways may be saving some of these doctrines from themselves, by
taking the edge off the credibility loss that the system would otherwise
suffer were they not subverted.
Second, it is worth repeating social psychology’s insight that motivation is everything in setting a reputation.547 All that is needed to provoke
the shadow vigilante’s conclusion that the system is indifferent to the importance of doing justice is an occasional headline case in which such apparent indifference is shown. The outrageous failure occurs, yet there is
no indication that the judge or some other official is to be sanctioned for
causing it. Thus it becomes clear that the outrageous result is authorized
and approved—it is how the system is supposed to work. With the system’s apparent indifference established, the observer can then easily assume that the same indifference motivates the system’s decisions in the
many other cases about which the observer never hears the details.
Finally, and most importantly, it is not the failure of justice itself
that does the most serious damage, but rather the threat of it, for this is
what creates the shadow vigilante impulse. That is, it is the potential of a
doctrine to produce gross failures that calls for its subversion. The police
would still engage in testilying to avoid a failure of justice even if they had
been successful in avoiding such a failure in every instance in the past. It is
546. Paul H. Robinson et al., Empirical Desert, supra note 2, at 34 (citing MODEL PENAL CODE:
SENTENCING § 1.02(2)(a) (approved May 16, 2007)).
547. See supra text accompanying note 340.
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not the frequency of an outrage that is relevant—each is just an instance
of the failure to prevent it through subversion—but rather the perceived
threat of the outrage. If the threat exists, so will the impulse to prevent it.
C.
Blowback and the Downward Spiral
Unfortunately, the distortions of the criminal justice system inspired
by the shadow vigilante impulse, such as police “testilying” and injusticeguaranteeing mandatory minimums, are only the first act of this sad tragedy of the system’s lost credibility. The defendants in drug cases, and
others present in the courtroom, obviously know the police are regularly
lying in court. Once that practice becomes common knowledge in an area, one could reasonably expect that people would stop trusting the police and the courts. A community that sees a significant portion of its
young men sent to prison for long terms by mandatory minimums far beyond what even the larger community thinks is just punishment548 could
easily see the criminal justice system as an enemy to be subverted, rather
than an institution worth supporting and helping.
One way in which this discontent plays itself out is through movements like “Stop Snitchin’,” which encourages people not to assist or cooperate with police.549 In some places the movement goes further, to urge
the intimidation of people who might think of cooperating with authorities. “Snitches Get Stitches,” the saying goes.550 The antisnitch campaign
has been boosted and glorified by popular music and culture.
Originally mentioned in rap lyrics, the “Stop Snitchin’” campaign
has been fed by a DVD entitled “Stop Fucking Snitchin’,” and a clothing
line of t-shirts and apparel using that phrase as its logo, as well as a follow-up DVD, “Stop Snitchin’ 2.”551 The DVDs discuss threats and violence against witnesses, together with footage of people discussing their
desire to kill those who “rat.”552 In Newark, New Jersey, T-shirts carry
pictures of witnesses that are to be killed, and pilfered witness statements
are posted online.553 In Baltimore and Boston, rap artists tell residents
not to cooperate with the local authorities.554 Sports stars also give legitimacy to the message. When asked how many pro athletes from highcrime areas would help identify criminals, Baltimore native and NBA
veteran Sam Cassell said, “‘One hundred percent of them would say no.
548. See supra text and authorities accompanying note 542.
549. Jamie Masten, “Ain’t No Snitches Ridin’ Wit’ Us”: How Deception in the Fourth Amendment
Triggered the Stop Snitching Movement, 70 OHIO ST. L.J. 705, 705–07 (2009).
550. JULIE L. WHITMAN & ROBERT C. DAVIS, NAT’L CTR. FOR VICTIMS OF CRIME, SNITCHES
GET STITCHES: YOUTH, GANGS, AND WITNESS INTIMIDATION IN MASSACHUSETTS 11 (2007).
551. Masten, supra note 549, at 705.
552. Id. at 705 n.5 (citation omitted).
553. David Kocieniewski, SCARED SILENT: With Witnesses at Risk, Murder Suspects Go Free,
N.Y. TIMES, Mar. 1, 2007 [hereinafter Kocieniewski, Witnesses at Risk], http://www.nytimes.com/2007/
03/01/nyregion/01witness.html?pagewanted=all&_r=0.
554. Id.
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A hundred. If I see five guys doing something [illegal] on the street, I’m
going to look the other way and hope I don’t see no more.’”555
The norm against snitching has taken hold on the streets of many
U.S. cities, including Newark, Baltimore, Philadelphia, Dallas, and
Washington DC, and affects all demographics:556
The Stop Snitching movement has found its tipping point—and is
now infectiously sweeping through the public . . . . This code is being adhered to not only by prisoners, but also by thirteen-year-old
girls in school, middle-aged neighbors across the street, and ordinary citizens who would rather run away from the police instead of
to them.557
In 2005, a witness to a murder was attacked while in protective custody.558
Summoned to the door of his cell, he was seriously burned when sprayed
by a mixture of water and baby oil that had been heated in a microwave.559 When asked why he had done it, the attacker replied that he had
heard the person was a snitch.560
In Essex County (Newark), people willing to help despite the danger often do so only clandestinely, in some cases leaving notes for detectives in trash cans, or asking to be taken away in handcuffs “so that
neighbors will think that they’re in trouble with the police and not cooperating.”561 Investigators report that when they arrive at a crime scene, it
is common for bystanders to leave, so as to avoid neighbors thinking that
they might cooperate with police.562
Witness intimidation has become so prevalent and expected across
major cities that a gang leader in prison in New Jersey awaiting trial for
murder was unconcerned about the existence a potential informant
against him: even if the informant “take[s] his plea deal . . . [t]hen what?
What’s he going to do when he gets out? Where’s he going to go where
no one will be able to find him?”563
In response to the Stop Snitchin’ norm in Essex County, prosecutors
have adopted an unwritten policy not to pursue cases in which they have
a single witness because the person is too likely to be killed or intimidated into silence.564 Even seemingly “slam-dunk” cases will not be pursued
555. Tom Farrey, ‘Snitching’ Controversy Goes Well Beyond ‘Melo, ESPN (Jan. 18, 2006), http://
sports.espn.go.com/nba/columns/story?id=2296590.
556. Masten, supra note 549, at 706–07.
557. Id. at 705–07 (emphasis in original).
558. David Kocieniewski, SCARED SILENT: In Prosecution of Gang, A Chilling Adversary: The
Code of the Streets, N.Y. TIMES, Sept. 19, 2007 [hereinafter Kocieniewski, Code of the Streets],
http://query.nytimes.com/gst/fullpage.html?res=9C00E5DF173BF93AA2575AC0A9619C8B63&ref=sc
aredsilent.
559. Id.
560. Id.
561. See, e.g., Kocieniewski, Witnesses at Risk, supra note 553.
562. Id.
563. Kocieniewski, Code of the Streets, supra note 558.
564. See Anthony Ramirez, 2 Newark Men Charged with Beating Informant, N.Y. TIMES, Mar. 25,
2007, http://www.nytimes.com/2007/03/25/nyregion/25witness.html?ex=13324752008&en=6d-3ea3138c
6381&_r=0.
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with a single witness, unless the witness’ testimony is extensively corroborated by physical and forensic evidence.565 Although witnesses are considered particularly compelling at jury trials, the frequency with which
they are intimidated or killed makes police reluctant to rely on them.566
Police detectives in Newark and other gang-violence prone areas of New
Jersey try to avoid using witnesses whenever possible.567 As one state police detective explained: “[i]f you push someone and they agree to testify,
now they’re your responsibility . . . [y]ou’ve got to keep them from disappearing or getting hurt. Can we protect them? Maybe. But God forbid
that two years later you have to tell someone their husband or father got
killed.”568 Even the then-Governor of New Jersey suggested that police
should “use civilian witnesses sparingly.”569 While the New Jersey State
Police gang unit has prosecuted hundreds of cases statewide over the
past five years, it has used civilian witness testimony less than a dozen
times in that period.570
The scary truth appears to be that witness intimidation is a pervasive and growing trend in many places.571 A study of witnesses appearing
in Bronx County, New York, indicated at least thirty-six percent of witnesses had been directly threatened, and that among those not explicitly
threatened, fifty-seven percent feared that they would be subject to reprisals.572 A study conducted by the National Youth Gang Center indicated that eighty-eight percent of urban prosecutors have described witness intimidation as a serious problem.573 In cities such as Baltimore and
Boston, prosecutors estimate that witnesses face some kind of intimidation in nearly eighty percent of all homicide cases, while in Essex County,
New Jersey, prosecutors claim that at least two-thirds of their witnesses
in homicide cases receive direct threats not to testify.574 It is perhaps no
surprise that Essex County, with its unspoken rule that single-witness
homicides generally will not be prosecuted,575 contains one of the most
dangerous cities in the country: Newark, New Jersey.576
The success of Stop Snitchin’ only feeds the vicious cycle by making
effective prosecution of serious crimes more difficult. With the intimidators winning the battle against authorities over public allegiance, or at
565. Id.
566. David Kocieniewski, SCARED SILENT: Keeping Witnesses Off Stand to Keep Them Safe,
N.Y. TIMES, Nov. 19, 2007, http://www.nytimes.com/2007/11/19/nyregion/19witness.html?ref=scared
silent.
567. Id.
568. Id.
569. Id.
570. Id.
571. Kocieniewski, Code of the Streets, supra note 558.
572. Kelly Dedel, Witness Intimidation, CENTER FOR PROBLEM-ORIENTED POLICING, http://
www.popcenter.org/problems/witness_intimidation/ (last visited Nov. 5, 2014).
573. Kocieniewski, Witnesses at Risk, supra note 553.
574. Id.
575. Ramirez, supra note 564.
576. Abby Rogers, The 25 Most Dangerous Cities in America, BUSINESS INSIDER (Nov. 4, 2012,
11:10 AM), http://www.businessinsider.com/the-25-most-dangerous-cities-in-america-2012-10?op=1.
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least compliance, that power only reinforces the impunity with which
they can intimidate further. That, in turn, gives them a freer hand to
commit offenses in the first place. In other words, the Stop Snitchin’ response is a recipe for disaster for the neighborhood. The lack of cooperation reduces the system’s crime-control effectiveness, which further damages its reputation, leading to less credibility, and less cooperation, in an
endless downward spiral.
VI. CONCLUSION
The current system’s apparent insensitivity to the importance of doing justice may not produce many vigilantes in the streets, but it has contributed to disillusionment about the criminal justice system’s interest in
doing justice. That disillusionment may help people increasingly justify
subverting the system. In the spirit of the 1851 Vigilance Committee and
the Lavender Panthers, the system’s intentional and systemic failures of
justice provide the shadow vigilantes with moral justification to “take the
law into to their own hands.” They do this not by taking to the streets—
typically only Hollywood fantasy does that now—but by manipulating
the system to their own ends as they see others doing to escape deserved
punishment.
Such shadow vigilantism may be less dramatic than taking to the
streets, but it can be pervasive, and ultimately even more damaging to
the integrity of the process. The 1851 Vigilance Committee announced
themselves and their doings so people would know their effect. Shadow
vigilantism provides an unseen and unaccountable corrupting force that
contaminates the entire process because one can never know when it is at
work.
Yet, the criminal justice system currently portrays itself as free to
create hostility among the community over failures of justice as it sees fit
because there is nothing a disillusioned community can do about it. This
is an arrogant and dangerous short game. There is much that a disillusioned and cynical community can do, beyond distracting itself by spending money to see vigilante hero movies. The community can manipulate
the system through many avenues to force it to do what it often seems
reluctant to do.
The tragedy of this dirty war is twofold. First, it could be avoided
simply by being more sensitive to the importance of doing justice. The
system could avoid doctrines that will predictably frustrate justice, unless
there is a compelling reason to do so and there is no other, less justicedamaging alterative. Second, forcing the disillusioned into shadow vigilantism often produces results that, in the larger perspective, even the
shadow vigilantes would find objectionable. Mandatory minimums avoid
the problem of unchecked lenient sentencing, but they also produce a set
of cases of predictable injustice. We would all be better off—both the offenders and the community—if the criminal justice system earned some
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[Vol. 2015
reputation for doing justice without the prodding of an outside force being necessary.
Rather than suffer the distortions of shadow vigilantism, it is argued
here that the system ought to publicly commit itself to the importance of
doing justice (and of avoiding injustice) in a way that will regain the trust
of society. That public commitment, backed by action, can undercut the
motivations for the unfortunate distortions that shadow vigilantism
brings. It could build trust that the system is devoted to doing justice on
its own, and need not be manipulated into it.
No criminal justice system can have a perfect reputation for both
doing justice and avoiding injustice. Someone will always think the system has improperly allowed a clearly guilty offender to go free, even if
the belief is mistaken. But just as the system ought not give up trying to
avoid injustice simply because someone will always claim there is more
to be avoided, neither should the system give up trying to avoid failures
of justice simply because someone will always claim there are more to be
avoided. The system can incrementally improve its moral credibility, and
thereby its crime-control effectiveness, by reducing its current level of
failures of justice (and of instances of injustice).
The cure for vigilantism, direct or shadowed, is a clear public commitment to giving the punishment deserved, nothing more and nothing
less. That will require significant reforms to current rules and practices,
but such reforms can bring not only greater justice, but also greater stability, respect, and deference to the criminal law in all its work.

Robinson - University of Illinois Law Review

Transcription

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